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.

[Frédérique Couette, Executive Director, Copibec]

Hello. Thank you for inviting me here today.

My name is Frédérique Couette. I am the executive director of Copibec, the Société québécoise de gestion collective des droits de reproduction.

Established in 1997, Copibec is the management collective of the community of Quebec authors and publishers. It is a non-profit organization. We collect royalties and pay them to authors, freelance journalists, creators, and publishers after covering our management fees.

About six years ago, we appeared before the committee with regard to Bill C-32. At that time, we warned MPs about the risks and potential abuse associated with introducing the word “education” into the fair dealing exception. The education sector officials offered reassurance. They said they would never end the licences with collective societies. They said it was merely a clarification with no tangible negative consequences for copyright holders.

As of January 2013, however, those same officials started terminating their agreements with Access Copyright. The situation has gone downhill steadily ever since. They claimed the right to establish copying policies that allowed them to reproduce a chapter or 10% of a work, according to the broadest possible interpretation, so they would no longer have to pay royalties to copyright holders through their collective society. The ministries of education outside Quebec have gone so far recently as to sue copyright holders through Access Copyright, while at the same time refusing to pay the minimal royalties established by the Copyright Board of Canada in 2017.

The situation is worrisome in Quebec as well. In June 2014, Université Laval adopted a copying policy based on the one used by educational institutions in the rest of Canada. The other universities in Quebec, the CEGEPs, and the ministry of education are still working with Copibec, but each time an agreement is renegotiated, the royalties are further reduced. The annual royalty per university student has accordingly fallen by close to 50%, from $25.50 in 2012 to $13.50 in 2017, while the CEGEP rate has fallen by 15%.

Unfortunately, we have to recognize that our fears have for the most part been realized. The licence revenues of copyright holders are vanishing under pressure from the education sector, lawsuits are multiplying and dragging on, while intellectual property is being steadily devalued with each licence negotiation. Although Copibec has maintained its 15% management fees, the royalties paid to authors, creators, and publishers have fallen by 23% for each page copied by universities.

The universities told you about the millions of dollars allocated in their acquisition budgets to access the content of major foreign publishers of scientific journals. Yet about 80% of the reproduction declarations that we receive, regardless of the level of education, pertain to the reproduction of books and not international journals. It is not the large international publishing groups that have suffered from declining royalties, but our small and medium-sized publishers, our own publishers, for whom royalties account for 18% of net profits on average. For certain book publishers, royalties can account for as much as 30% of net profits. These revenues also make a significant contribution to the long-term survival of specialized Canadian and Quebec journals and can be the deciding factor in a publication's survival or demise. For our authors who are already in a difficult position, any drop in revenue in the copyright chain affects their financial ability to create.

Quebec's experience is nonetheless an example of collective management that allows for the negotiation of agreements between users and copyright holders. I am not saying that everything is great, because that is not the case. In fact, if nothing is done to correct the disastrous effects of the changes made in 2012, the situation in Quebec will only worsen and we will see a steady drop in royalties, if not their complete disappearance.

Quebec university students currently pay $13.50 per year for the Copibec licence. That amounts to less than half a per cent of a student's annual tuition fees in Quebec. Further, there is nothing in the agreements signed with the universities—they are signed with the universities and not the students—that requires them to pass those costs on to the students. For Concordia and the University of Montreal, for instance, this represents 0.08% and 0.07% of their annual operating budget for 2017-18 respectively.

Tuition fees are not higher in Quebec than in the rest of Canada. Paying royalties for the reproduction of excerpts of works has never jeopardized the Canadian education system or led to excessive student debt.

The fair dealing exception for education has been presented to you as the best way to access works. We are extremely puzzled by those statements, which are not backed up by any relevant evidence. At the same time, we know that collective management has always included this aspect of access to works, including digital works, owing to the agreements signed with foreign management organizations that belong to the International Federation of Reproduction Rights Organisations, or IFRRO.

Collective management is an undeniable benefit of a balanced act, as it balances access to works and ease of management on the one hand, with the compensation of rights holders through the payment of reasonable royalties on the other. It not only promotes direct access to knowledge, but also preserves creativity and cultural diversity for the future. It is for good reason that UNESCO considers collective management “an essential element in the construction of a modern national system of protection of copyright which would effectively promote a dynamic cultural development.”

Fundamental rights protect the compensation of authors and publishers. The Universal Declaration of Human Rights provides that all work should be paid and protects intellectual property. Copyright and all its elements is also intrinsically linked to authors' freedom of expression as it allows them to earn independent income that supports independence of thought.

Mr. Chair, vice-chairs, and members of the committee, thank you for your attention today. I would point out that our demands reflect a modern and forward-looking approach for a society that invests in its culture in the digital age. Collective management is not a model of the past, but rather a contemporary model that guarantees access and cultural diversity. The decisions you will make at the end of the current review will profoundly affect the future of the book publishing sector and cultural development in Canada.

I will conclude my presentation by quoting from the Creative Canada Policy Framework, published in 2017, regarding the review of the Copyright Act:

[...] Our copyright framework remains a vital part of our creative economy, and will continue to do so in the future. A well-functioning copyright regime should empower creators to leverage the value of their creative work, while users continue to enjoy access to a wide range of diverse cultural content.

Collective management is consistent with these and the other objectives of Canada's cultural policy.

Thank you.

[Luc Fortin, President, Guilde des musiciens et musiciennes du Québec]

Good morning.

I want to thank the committee for having me here today. I also want to say hello to my colleagues from the Canadian Federation of Musicians and the SPACQ.

I am the President of the Guilde des musiciens et musiciennes du Québec—Quebec musicians guild—which partners with the Canadian Federation of Musicians. We also have the exclusive accreditation to represent musicians in Quebec under the provincial legislation on the status of the artist. Our association has 3,300 regular members and close to 500 members by permission.

I will basically talk about the modernization or reform of copyright in the digital era, and about funding allocation procedures to better support our musicians.

The digital boom has revolutionized the music industry. Music is accessible from anywhere on a broad variety of portable devices connected to wireless networks, most often at no charge to users. On YouTube, for instance, people can listen to anything for free, and musicians or right holders don't receive any compensation.

Unfortunately, music industry frameworks in Canada are not adapted to the rapid evolution of the digital era. The first victims are musicians, artists and creators.

If producers are complaining about a drop in their revenue following this digital revolution, you can easily imagine the devastating impact of that drop on artists themselves, who often receive only a tiny fraction of phonogram and album sales.

We at the Quebec musicians guild are regularly faced with our members' unfortunate socio-economic situation. We estimate that one-fifth of our 3,300 members can truly live from their music consistently. We are including education as a source of revenue.

One of the reasons behind the decline in revenue was Bill C-32. Unfortunately, that legislation prematurely put an end to the private copying levy. Today, private copying is done by more Canadians than ever before. Musical works are being copied to USB keys, the SIM cards of smart phones, iPads, iPods, and so on, without any money going to collectives. This is a gross injustice, and the Canadian government must set things right. A royalty paid to artists is not a tax, and Canadians are fully aware of that.

In addition, Internet service providers must absolutely contribute because they have a substantial revenue stream from Internet subscriptions and bandwidth sales, which are in part attributed to Canadians' amazing appetite for downloading and streaming musical works. However, the works broadcast on the Internet bring almost nothing to creators.

It's not normal for songs heard thousands of times, especially on YouTube, to make no money. That platform enables people to listen to pretty much any musical work for free. Internet users often post songs online without consulting the authors or associating the video with them. People make their own montage using images. The Copyright Act should absolutely be modernized, so that everyone can receive their fair share.

Let's now talk about funding allocation. Producers receive assistance for operations and projects related to their business activities. Musicians do not receive that type of assistance, except in the case of specific short-term creation projects or the setting-up of certain short-term shows. Most of the funding goes to private production companies. Consequently, we have to work several jobs and live very precariously. That often forces musical artists to give up on their career fairly early. We depend on production companies and are often at the end of the compensation chain.

Many assistance programs are available for production companies, but that unfortunately does not enable our artists live from their art. Musicians are always paid at the end.

Subsidized companies do have enough money to hire employees, accountants, press agents, communications officers, and so on.

We think that the government must absolutely take into consideration the fact that artists also have to make enough money to focus on their art. Grant allocation policies should take that into account. I invite you to watch the excellent documentary series called Arrière-scène. The series was produced by Franco-Ontarian television station TFO and directed by Nicolas Boucher, a former guild member turned film producer. The documentary looks at the daily lives of Canadian musicians who tell the camera about the difficulties they have faced in their jobs and their frustration with the inequitable sharing of industry revenue.

For example, after revenue sharing, an album sold for $10 on iTunes may bring 75¢ to the group of artists and creators involved in its making. You will understands that, with sales splitting, hardly at any revenue can be made through that type of sharing without additional fees being applied to Internet broadcasting.

As for the funding of company projects, all album projects should ensure regular earnings over the length of the undertaking. The policy whereby an artist starts receiving royalties only once production costs have been covered is unacceptable. Royalties should be paid as soon as the first album has been sold, and the subsidies provided should take that into account. I also don't think that waiting until all production costs have been covered is a good way to pay providers. Therefore, musicians should not be subject to that policy.

Artists' associations have also established minimum standards of pay, and the collective agreements that are negotiated guarantee a social safety net for artists and protection in case of litigation. Those contracts should absolutely be submitted in company usage reports to the organizations that subsidize them.

How can it be ensured that artists and musicians have been paid properly if there is no oversight in that area? The best form of oversight is the submission of contracts approved by artists' associations. This is a key point that should absolutely be dealt with.

Thank you for your attention.

Copyright Modernization Act

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Madam Speaker, I am pleased that my colleague and friend from Halifax West asked me to stand and speak. He serves as the industry critic and is certainly much more involved in this topic and piece of legislation than I am. But I have been able to form an opinion after following the debate, after having an opportunity to speak with a number of persons whose lives and livelihoods are impacted by the passing of this legislation, and after having read some of the testimony given in committee hearings. I am very comfortable with my party's position on this particular piece of legislation.

This is not the first time we have seen this type of legislation. For the most part, Bill C-11 is a carbon copy of what we saw in the previous Parliament, which was Bill C-32. The Canadian economy is in the midst of a transition to a digital economy. We know that cultural institutions are going to be impacted through this transition. The music, cinema and education sectors are going to be profoundly impacted by this piece of legislation.

From what I have been able to read through the development of the legislation and the testimony in committee, there is some support for the legislation. There are some solid principles in the legislation and the direction of the legislation was embraced by the vast majority, but there are a number of specific aspects of this bill that are very contentious and are going to pose harm to a great number of Canadians. Amendments that were brought forward that seemed to be logical and reasonable were totally dismissed, and I am going to talk about that a little later on.

We know that things have changed. Let me take the music sector, as an example, and talk about how that has changed over the last number of years. My caucus colleagues and I would have grown up in an era in which our first experience with music probably would have on vinyl. I do not think it would have gone back to the time of 78s, but certainly 45s and long-playing albums.

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

—I don't recall hearing the concerns about the Copyright Act that you expressed today, as part of either Bill C-11 or Bill C-32. Did you take the opportunity to either appear or to provide a submission?

[Joyce Bateman, Conservative, Winnipeg South Centre, MB]

Madam Speaker, I am grateful to have the opportunity to take part in today's debate on Bill C-11, the copyright modernization act.

In the 2011 Speech from the Throne, the Government of Canada committed to reintroduce and seek swift passage of legislation to modernize Canada's copyright law in a way that balances the needs of creators and users. This bill fulfills that promise.

This is the third time that we have tried to introduce this copyright legislation. Thanks to this government, we are finally going to update our act so it is consistent with international standards.

It is the culmination of one of the most extensive consultations that any bill has undergone, with more than 9,000 Canadian citizens and organizations having provided their thoughts regarding what a balanced copyright bill should look like.

It is from that listening exercise that our government arrived at the balance that we have today. It is a balance that not everyone is 100% content with, but everyone can agree that they have had some specific measure that was called for.

Canadians can also agree that what we have in this bill, especially with the amendments arrived at during committee stage, is in the right ballpark of what a balanced copyright act should look like.

This legislation will strengthen our competitiveness within the global digital economy and will protect and create jobs, promote innovation and draw new investments to Canada.

It is a hard-won balance, the result of principled compromise and one that the government is proud of.

Opposition parties have talked about this balance in several separate ways, almost disjointedly. On one hand they pit artists against consumers, and then they turn around and favour consumers over artists, all the while ignoring the need to ensure compromise.

Instead of advocating new costs for consumers, like an iPod tax, the opposition should finally side with us and support the modernization of Canada's Copyright Act.

Over here we realize that this compromise is necessary, because consumers and artists are in fact two sides of the very same coin. They are the same equation. If artists do not trust the rules that protect their rights and govern Canada's digital economy, they will be reluctant to produce their content here.

The government and members of Parliament have heard that time and time again in the consultations we have held. We have also heard that if consumers are unable to enjoy and use the content in legal ways that make sense to them, there will not be a market for the artists' work. That is why we have created a bill that strikes the right balance between the needs of consumers and users, while at the same time making strong exemptions for educational purposes or fair dealing.

The bill is an important stepping stone to the establishment of a strong framework in which Canada's digital economy can thrive. We know that the economy is changing significantly. What we do now with smart phones, tablets and computers has taken our economy in a new direction, where artists and rights holders are using the digital economy not only to bring new art to market but also to create hundreds of thousands of jobs for Canadians.

Those benefits are reflected in the raft of groups that are supportive of this legislation. To name only a few, they include the Canadian Chamber of Commerce, the Entertainment Software Association of Canada, the Business Coalition for Balanced Copyright, the Canadian Anti-Counterfeiting Network, the Canadian Intellectual Property Council and the Canadian Institute for the Blind.

I could go on, but I think the point is clear: the bill has wide-ranging support from those who see it as a key platform in the growth of the digital economy and the creation of knowledge economy employment.

I have listened with interest to today's debate, which is eerily reminiscent of the budget debate. In the budget, for example, we on the government side are putting forward a plan for how to sustain Canada's economic health in a time of global economic uncertainty.

Yes, unfortunately, the global economy is still fragile.

Here we have the opposition dreaming up new ways to stop our economic growth right in its tracks. We are providing for new, reasonable and economically viable ways to help grow our economy, whether it is an investment in our knowledge economy, sensible changes to the Investment Canada Act, or opening up our telecom sector to increased foreign investment, yet the opposition says “no” to those investments and “no” to changes that will create jobs and investment right here at home.

The new copyright regime will encourage new ideas and will protect the rights of Canadians whose research and development work and artistic creativity make our economy vibrant.

In the budget implementation act we have proposed practical changes to create a reasonable timeline for environmental reviews, while creating stronger environmental laws. We know that in the next 10 years more than 500 new projects representing over $500 billion in new investments will be proposed for Canada. The potential for job growth is enormous.

Since 2006 our government has been looking to streamline the review process for major opportunities such as this. More needs to be done and more can be done, yet the opposition says “no” to jobs and “no” to economic strength. Federal and provincial revenues that would flow from that measure will not accrue to Canadians because of these decisions.

I understand that part of that is the role of an opposition. I appreciate that, but the opposition's parliamentary games are not reasonable. For example, the member for Burnaby—New Westminster took up over 13 hours of debate and 70 speaking spots simply reading from Twitter posts in the House of Commons. I guess none of his colleagues had anything substantive to add to that debate. When I look at those kinds of tactics, I am not surprised about the opposition's stance on this legislation.

The same kinds of games were played during second reading of Bill C-11. The opposition spoke for more than 19 hours, often repeating the very same words, and all the while, for every day it delayed, another day went by without a modern, flexible copyright regime to help spur on our digital economy.

The bill is the outcome of one of the broadest consultations of its kind in Canadian history. In addition, the government acknowledges the many testimonies and briefs from stakeholders and parliamentarians about the bill tabled in the last session of Parliament and thanks everyone who contributed. This process made it possible to send a very clear message: Canada urgently needs to modernize the Copyright Act.

When it comes down to it, that is what this legislation is about: how rights holders and consumers interact with the digital economy, the economy of the 21st century.

What we need is a bill for the 21st century.

We know, after listening to witnesses at the committee stage of both Bill C-11 and Bill C-32, that this bill would create jobs and support the growth of Canadian business in the digital and online environment. It would promote creativity and innovation.

Report Stage

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Mr. Speaker, there have been more consultations on this bill than almost any bill I have ever seen in my six years in the House. In fact, as I mentioned in my speech, I believe that between Bill C-32, which was introduced in the previous Parliament, and Bill C-11, which is the bill we are discussing now, committees heard from more than 180 different individuals. There were hours and hours of debate in the House of Commons, dozens and dozens of hours of discussion in committees and the opportunity to hear from and question witnesses. One thing that has to be said is that there has been no shortage of consultation on this bill.

[Mike Lake, Conservative, Parliamentary Secretary to the Minister of Industry]

Mr. Speaker, I am pleased to rise in my place today to speak to Bill C-11, the copyright modernization act.

The bill is returned to the House after extensive review by a legislative committee and the adoption of some technical amendments that will improve it but not alter the important policy balance that has been achieved. However, for those technical amendments, Bill C-11 is essentially the same as Bill C-32, which was being studied during the last Parliament.

Members of the House might remember that Bill C-32 went through 6 hours and 50 minutes of debate in the House, with a total of 17 speeches. In committee, 78 organizations and 122 different individuals appeared over the course of some 20 meetings, which lasted a total of 39 hours. That was a very comprehensive and wide-ranging debate on many of the same issues that have been reintroduced during the discussion around Bill C-11.

The debate on the bill before us now has been even longer and we have heard from even more speakers, with 86 speeches in total as well as numerous interventions. Clearly the House has many views on copyright reform.

The legislative committee also heard from a broad spectrum of interests that had a stake in the modernization of copyright. In February and March, the committee met on 11 occasions and heard from 62 individuals representing various creators, collectives, intermediaries, associations and businesses. They expressed varied and sometimes opposing views on a number of provisions in the bill.

To emphasize the range of views that were represented, we heard from librarians and archivists, broadcasters, directors and film producers, musicians, publishers and authors, educators, lawyers and persons with perceptual disabilities. We also heard from large and small businesses.

I would like to take this opportunity to respond to some of the concerns that we heard concerning copyright reform.

The first relates to concerns we heard about compensation for creators. Some have argued for the expansion of the private copying regime and oppose the new exceptions for consumers. Expanding the private copying regime would increase the cost of new technologies. The government cannot have a strategy of greater access to the Internet and promotion of our digital economy and at the same time support a policy that would increase cost and taxes on new technologies that drive innovation.

The digital economy provides creators with new ways to market their works and find new revenue streams. The bill would provide them with new rights, protections and specific measures to combat the enablers of copyright infringement.

Another concern expressed by some stakeholders is that the fair dealing exception for education may have a detrimental impact on the revenue streams of creators. They propose that fair dealing be constrained rather than rely on the six factors that have been established by the courts to determine what is fair.

I point out that fair dealing is not a blank cheque. It is a long-standing feature of our copyright law that permits individuals and businesses to make certain uses of copyrighted material in ways that do not unduly threaten the interests of copyright owners and which could have significant social benefits, but only if they are fair.

Finally, in summarizing what we heard during the second reading debate and at committee, I point out that the education provisions of the bill received considerable attention and some criticized some of the safeguards that had been put in place to ensure a balance of interest.

The bill introduces new measures aimed at enriching the educational experience. It greatly expands the ability of teachers and students to make use of new digital technologies and of copyrighted materials in the educational context.

For instance, teachers and students will be allowed to use copyrighted material in lessons conducted over the Internet and use legitimately posted material that they find on the Internet for educational purposes. The bill would also adjusts existing educational provisions to make them more technology neutral. The limitations and safeguards in place in relation to these new measures are an essential part of the balance between supporting learning and respecting the legitimate interests of copyright owners.

These matters were discussed extensively at second reading and by the legislative committee, in which we enjoyed a very wide-ranging and thought provoking discussion. In addition to robust debate regarding the private copying regime, fair dealing and the specific education provisions, we heard about the need for technological neutrality and the benefits to consumers.

We are proud this bill would amend the Copyright Act to provide a technology neutral framework that would stand the test of time. We live in an ever-evolving media and technology landscape that requires such a framework moving forward, so we are getting rid of outdated references to flip charts and other technologies to ensure the legislation remains relevant.

Finally, as followers of the copyright debate know, the bill proposes key changes that would benefit consumers. Consumers would have more flexibility to enjoy and manage their legitimately acquired content. Consumers would be allowed to time-shift their programming recorded on television, radio and Internet broadcasts. Consumers would also be allowed to format-shift and make backup copies.

Furthermore, we would be adding parody and satire to fair dealing and the ability for Canadians to create user-generated content. These are important amendments that would increase innovation and consumer choice.

In committee, witnesses agreed with the central premise that has been made time and again in this House. Modernization of Canada's copyright laws is long overdue. Some argued that the balance we have established on the bill before us should be tilted one way; others argued we should go further in the other direction. That is the nature of a bill as complex as this one. Not everyone will get everything they were looking for in the modernized copyright regime. However, moving ahead with the bill will be much better than perpetuating laws that have not been updated in more than a decade.

The bill would deliver a common-sense balance between the rights of consumers and the creative community. Importantly, it would also bring our laws in line with the WIPO Internet treaties.

Bill C-11 would provide for a parliamentary review of the Copyright Act every five years. At that time, Parliament would have the opportunity to review the changes made by the bill, as well as study how well the Copyright Act, as a whole, is serving to balance the needs of creators and users.

However, let us move quickly on passing the bill now, so that consumers and creators can soon benefit from these provisions. I urge hon. members of all parties to join me in voting for third reading so the bill can proceed to the Senate.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, for us, what is important is that we do the job right. What we have said consistently, and as indicated through the efforts of my colleague from Timmins—James Bay and others, is that we would like to do a thorough job. Absolutely, we would like to be time effective, but let us ensure that at the end of the day the legislation that comes out is to the benefit of all Canadians.

I would like to read the words of the Society for Reproduction Rights of Authors, Composers and Publishers in Canada that noted on the identical bill to C-11, Bill C-32:

If adopted without amendments, the bill tabled in the House of Commons will significantly affect creators' revenues. Moreover, the desired balance between the interests of creators and those of consumers and users is, in our opinion, completely absent.

This is not a balanced bill, and that is what we ask for.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, my colleague talked about being concerned about creators. All of us are concerned about creators.

This is a quote from a group of creators, the International Alliance of Theatrical Stage Employees. It says:

We congratulate the Government for protect[ing] the creative industries and men and women working in film and television production across Canada....The bill does not provide for the extension of the controversial private copying levy to devices such as ipods, which would have been extremely unpopular with consumers...

Given the fact that we have spent two and a half years debating this legislation, whether it was Bill C-32 or Bill C-11, given the fact that we have received thousands of input, given the fact there was a special legislative committee and given the fact that the bill attempts to balance the rights of consumers and creators, would the hon. member like to comment on the fact that no matter what provisions are in a bill there will always be somebody who will find the bill unsatisfactory? Would my colleague acknowledge that Bill C-11 is a good attempt at balancing that? I expect I know the answer. It is always a balancing act. Regardless, I wish we could just get on with it instead of playing politics with consumers and creators.

[Pierre Lemieux, Conservative, Parliamentary Secretary to the Minister of Agriculture]

Mr. Speaker, I appreciate being allowed to rise for debate on Bill C-11, the copyright modernization act.

Since 2006, one of our government's goals has been to protect those who seek innovation by creating or evolving new ideas. We have answered the call sent by Canadians for responsible copyright legislation that would protect and help creators, performers and copyright owners or consumers. Our government recognizes how new technologies are changing the lives of many Canadians, and our creative industries deserve a modern understanding of the critical role copyright laws play in protecting and creating jobs in Canada's digital economy. In our fast-moving technological world, it is important that our legislation remain current and provide a better, more efficient way for copyright owners to create and protect their content.

After an attempt to modernize our copyright legislation in 2011, which we could not complete because of the demand from the opposition for an unnecessary election, I am proud to say that we continue to pursue this goal. We are glad that Canadians gave our government a strong majority so that the opposition can no longer disrupt our goal of providing creators with a modern copyright act that is in line with today's digital world.

By reintroducing this bill without change in the fall, our government reiterated its support for a balanced approach to copyright reform, and after hearing more than 70 witnesses at the Bill C-32 committee and almost as many at the Bill C-11 committee, we think that this bill will finally provide a new, modern and up-to-date vision for copyright that has always been shared by our government. Not only would this legislation bring our country on par with international standards; it would also make our country a world leader in terms of copyright reform. For example, I would cite the notice and notice provisions of this bill as truly innovative.

I am also glad to say that multiple witnesses have provided strong support for this bill, acknowledging that our government's main goal is protecting and creating jobs while stimulating our economy and attracting new investment to Canada. As an example, the Canadian Publishers Council said that our government “...demonstrates a clear understanding of the need to amend the current Copyright Act to bring it more in line with our times”.

In this regard, let me say a few words about the proposed amendments to Bill C-11, amendments that speak to the concerns that have been raised and that will bring some clarity and precision to the bill.

For example, in response to the concerns from the CNIB, which provides support to blind and partially-sighted Canadians, we have introduced an amendment for non-profit organizations that limits the legal actions that can be taken against non-profits that mistakenly export abroad an alternate format that is meant for people with visual impairments.

Some non-profit organizations had raised concerns with regard to the fact that they could be discouraged from making use of the exception regarding formats for people with a perceptual disability, because of the related legal liabilities. This clarification will enable these organizations to use the exception without fear of negative consequences.

At this point, I would like to take this opportunity to thank all those who contributed their briefs and suggestions to Bill C-11.

The intent of the bill is not to punish legitimate organizations that make an honest mistake in good faith, but to protect intellectual property as well as the rights of consumers. It should be noted that copyright holders can always ask for an injunction to bring an end to any violations. This amendment shows our good faith as well as our openness to proposed technical amendments. I would like to repeat that our intent is not to punish those who respect the law.

With this in mind, I would like to mention another amendment that would help to better target those persons who do not obey the law and who abuse the opportunities offered by the Internet. This amendment concerns safe harbour provisions. The amendment would clarify the scope of the legislation and eliminate safe harbours for persons who allow or enable copyright infringement.

Currently, service providers have four areas of exemption regarding enabling offences: caching services, hosting services, telecommunications services and information location tools, such as Google or Yahoo.

The amendment to the bill would eliminate safe harbours for caching and hosting in cases where copyright infringement would be enabled. Safe harbours are not created for criminals who seek to escape the law and abuse the legislation for their own profit. The amendment would clarify this issue.

The amendment would have a positive effect and give copyright holders other means of recourse to protect their works. They have the right to benefit from the results of their efforts.

We have also made an amendment concerning the scope of injunctions in order to clarify the legal issues surrounding search engines. This amendment would address concerns with search engines and possible catch-all injunctions that would be too broad to enforce, such as a court order requiring that a song be completely removed from the Internet.

It is a matter of demonstrating common sense and having realistic expectations of what can be done to fight Internet piracy. Under the provisions of our bill, search engines would not be liable as a result of performing their role as neutral conduits.

Once again, our goal is not to penalize legitimate intermediaries, such as search engines, that provide a valuable service to the users. That is highlighted by this amendment.

This amendment goes hand-in-hand with our desire to recognize the neutral role played by these intermediaries in online activities. This bill is intended to establish a balance between the parties, and this amendment will help establish a reasonable balance for everyone.

For the consumers, we have made another clarification with the amendment concerning access to copies in terms of alternative formats and later viewing. This amendment confirms that personal use refers to the entire household, not just a single individual. We feel this is a matter of common sense. We hope that the bill reflects this common sense, both in its implementation and in its spirit. We must ensure that consumers can take advantage of the content they have purchased at the time and in the format of their choice, while respecting the balance between creators' rights and consumers' rights.

In addition, the wording of the former provisions could suggest that they granted a right to mass-distribute copies, provided they were intended for the recipient's exclusive personal use. This amendment reinforces the language of the act without changing its spirit.

This amendment will also enhance intellectual property protection, while enabling consumers to enjoy their purchases in the comfort of their homes.

Earlier I mentioned that this bill would make Canada a world leader in copyright reform. It is also important to note that we will finally be meeting the standards of the international treaties to which Canada is a signatory.

We have also added an amendment respecting international treaties to clarify the remedies available to copyright holders and to make it clear that they may base a remedy on the treaty of their choice, but not two at the same time.

The purpose of our bill is to provide Canada with a modern intellectual property regime adapted to new technologies. Treaties overlap when copyright is asserted or belongs to countries that are signatories to both treaties. This clarification protects consumers and means they will not have to pay twice for the same service as a result of overlapping international laws.

Once again, we have to do things properly and ensure that the rights of consumers and creators are respected and that our intellectual property regime creates wealth for the future.

It is time to acknowledge that Canadians have spoken in favour of this legislation. It is time to pass the bill.

[Mike Lake, Conservative, Parliamentary Secretary to the Minister of Industry]

Mr. Speaker, in terms of the opposition's comments about the amount of consultation and debate on this particular issue, I would just note that Bill C-32 in the last Parliament and Bill C-11 in this one have had very many hours of debate. We have seen about 180 individual witnesses come before committee and, between the two bills, dozens of hours of committee hearings. I wonder if the hon. member might comment on whether, in his experience in the House, he has seen this level of debate in any other bill.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Madam Speaker, thank you for the opportunity to speak to Bill C-11.

To start, I would like to note my support for the bill. I encourage others to support it as well.

The bill is a result of consulting, listening, and listening until we got it right. In fact, this legislation has come to this point through one of the largest consultations in Canadian history. By now, there should be no mistaking the message that we have received. Canada needs to pass legislation to update its Copyright Act and we should do so quickly.

As we have heard during various speeches delivered during the course of the proceedings on Bill C-11 and former Bill C-32, this legislation purposely balances both the rights of creators and the interests of consumers. It does so in a way that allows artists and creators to position themselves as they wish, but principally protects and enhances their ability to succeed as entrepreneurs.

By strengthening the protection of their intellectual property rights, we know that if we give our artists and creators, digital or otherwise, the proper legal and economic framework in which to produce work, a large number of them will succeed, prosper and grow.

Canada is home to a great number of global success stories in the visual and performing arts, as well as artists and creators who use new media to tell their stories and create their work.

Every year, new artistic innovators emerge and build upon the successes of those before them. It is important that the laws which oversee the protection of their work are up to date and flexible, so that as art forms evolve and change, the law still applies in a way that makes sense, common sense.

On the other hand, without solid intellectual property protection, the kind of artistic activity that we celebrate every year at events like the Junos is discouraged, and success is more difficult to achieve.

For instance, we should look at Canada's very successful video game sector. We all know that Canada is home to world leaders like EA Sports, a great company that makes games like Madden football and NHL, but there are a host of other companies that thrive here in Canada as well.

For example, when the Minister of Canadian Heritage and the Minister of Industry visited BitHeads here in Ottawa, the owner of that company told the Toronto Star afterwards that he loses 90% of his company's revenues to piracy activities. That is why he supports this new legislation. We need to ensure that this kind of piracy stops.

I can also speak about the positive effect the bill would have on photography in Canada. The bill ensures that photographers are the first owners of copyright on their photographs, and that copyright will be protected for 50 years after the photographer's death. Taken together, what the bill aims to do is protect the incentive to create.

Provisions in the bill strengthen the ability of copyright owners to control the uses of their online work, therefore preventing piracy and infringement and promoting new and legitimate online business models.

For example, there are provisions creating a new category of civil liability which directly targets the enablers of online piracy. In the same light, the bill ensures the protection of technological protection measures, such as digital locks, to prevent unauthorized access to copyrighted material.

Artists and rights holders will not only benefit from these protections against circumvention, but they will also benefit from the creation of rules that prevent the manufacture, importation and sale of devices that can break digital locks.

The opposition has been critical of digital locks. The important point here is that digital locks are a tool in the box for creators who wish to protect their hard work. Rights holders are free to market their work with or without a digital lock. Fundamentally, they will respond to the market in which they are active in the way that best suits their interests and values. That is how it should be in a free market.

It is because of the measures I have just mentioned and more that I am happy to see the bill move forward, beyond the delay tactics we saw at second reading and through a productive committee session in the winter, to this stage today. In many respects this debate has given parliamentarians a strong appreciation for the economic contribution of artists and creators to the Canadian economy as people who innovate, create jobs and strengthen their communities as well as the economy.

We are also more aware of the opportunities that exist for Canadian artists in our new digital economy. Because of this appreciation and the promise created by these opportunities, what we are saying to artists across the country is that we understand this piece of legislation is important for their ability to profit fully from their work.

We will bring the full force of the law against organized commercial piracy to protect the efforts of Canada's creative community. The commitment met with stakeholders' support again and again.

The Entertainment Software Association of Canada said that the government is delivering on a promise to modernize outdated law and support new and innovative business models. It considers that this legislation would provide a framework to allow creators and companies to distribute their works in the manner that best suits them. This is the association that supports video games and other entertainment software creators. It is saying clearly that this law should be passed now.

The Canadian Anti-Counterfeiting Network is just as clear. It said that it strongly supports the principles behind this legislation, and that piracy is a massive problem in Canada, which has an economic impact on government retailers and consumers. It said, “We are pleased the government is committed to getting tough on IP crimes.”

The Canadian Publisher's Council said that “...we all benefit from strong and precise copyright legislation that provides incentives to protect rights holders” in this highly competitive economy.

It is clear that we have support to move ahead and that we are delivering with this legislation. With the kind of protection those stakeholders are seeking, it is clear that artists do not need things like an iPod tax, which the opposition supports again and again, and does so regardless of the market consequences and what it would mean for the ability of our creators to market their products in new and innovative ways.

The opposition should take a more positive and confident view of artists and creators. In essence, it should see them as the innovative entrepreneurs that they are and support copyright modernization in Canada as a way of enhancing their ability to succeed.

This is our third attempt at introducing copyright legislation. Thanks to the efforts of our government, as well as those who took part in the Bill C-11 committee, we will finally bring Canada's copyright laws in line with international standards. This legislation would strengthen our ability to compete in the global, digital economy. It would protect and create jobs, promote innovation and attract new investment to Canada. Moreover, this legislation would encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity strengthen our economy each and every day.

For these reasons I am pleased to support the bill. I encourage all members of this great place to vote in favour of it.

[Marie-Claude Morin, NDP, Saint-Hyacinthe—Bagot, QC]

Madam Speaker, as I said at the beginning of my speech, this bill is more or less a carbon copy of Bill C-32, which was rejected by many artists' groups and by the opposition.

Now that the Conservatives have a majority, they are marching in, imposing this unacceptable bill on us once again. As the hon. member said, there is a lack of innovation. In addition, there is no openness on the part of the government, which does not listen to artists, writers, musicians and all those whose work reflects our Canadian culture and identity. The government's lack of vision in modernizing copyright is a real problem.

Bill C-11—Time Allocation Motion

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

Mr. Speaker, the government House leader does negotiate and has negotiated on these matters. He does it all the time, through two minority Parliaments and now this majority Parliament.

On the substance of what we are talking about right now, copyright, we have considered opposition voices. We did not invoke time allocation. We had stand-alone legislative committees. We brought in individual Canadians to consult on this legislation before we even drafted the bill, because we realized that in our first Parliament, in 2006-08, copyright was approached in the wrong way. We took a new approach with Bill C-32, now Bill C-11, the bill before us.

We asked Canadians at the front end what ought to constitute effective copyright reform. Those consultations came in. Tens of thousands of Canadians participated. It was an open, incredibly democratic process where Canadians could freely discuss this legislation, and we arrived at Bill C-32.

We negotiated with the opposition House leaders. The government House leader reached out to the opposition House leaders. We created a stand-alone legislative committee to debate the bill for the past two years. Call the question.

[Christian Paradis, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, once again, taking Bill C-11 and Bill C-32 together, at second reading alone, we had 29 hours of debate and 31 meetings lasting a total of over 65 hours, and we heard from over 110 witnesses.

Yes, Bill C-11 is the same as the former Bill C-32, with 11 amendments made following consultation. What people do not want is an iPod tax. That is clear. Yet that is what my colleague is recommending and he is starting to sound like a broken record.

We need to move on. What we want to eliminate is piracy. When people try to cheat and pirate material in the digital era, it will be prohibited. This legislation will comply with the international standards of the World Intellectual Property Organization. People expect that. The legislation needs to be updated. After so many hours of debate, it is time to move on.

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Mr. Speaker, I just heard the Minister of Industry refer to a skipping record. There is a good explanation for that. Despite what he says and all these consultations he mentioned, the government has not heard the message. It is as simple as that.

What we are telling artists again today in Bill C-11 and what we told them in Bill C-32—and the Minister of Industry said himself that the two bills are the same—is that they will not be paid for their work. Whether we are talking about artisans or more or less famous artists, this change has not been made in Bill C-11. That is why we must continue to listen to people, not just here in Parliament, but in committee, to finally make the government understand the situation.

Time allocation always reminds me of a recent ad campaign for a credit card company, or even Club Med, which shows 30 seconds of sunshine and beautiful people strolling down the beach and asks us to imagine spending a week doing the same. With all these time allocation motions that we have had in just one year of this majority government, just imagine what we are in for until 2015. It is unbearable.

[Christian Paradis, Conservative, Minister of Industry and Minister of State (Agriculture)]

Mr. Speaker, again, it is not reasonable for hon. members to rise in this House and say there has been no debate on this bill. On the contrary, there has been a tremendous amount of debate on it.

We reintroduced the same bill from the last Parliament in order to continue the debate that was held on Bill C-32 and on Bill C-11. We have been debating this for two and a half years. More than 10,000 consultations have been held across Canada.

My colleague, the Minister of Canadian Heritage and Official Languages, can confirm that. He and the President of the Treasury Board were in charge of this file in the previous Parliament.

It is time to move into the digital age. What we are hearing in this debate is a skipping record. Vinyl records that skip are a thing of the past. We have to move toward the digital economy. We have to move on to something else and update the legislation.

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

Mr. Speaker, if by quoting me the hon. member is trying to sweet talk me into supporting his leadership campaign he is a bit late.

With regard to copyright reform, I would remind the House leader of the official opposition, all the opposition parties in this House, even my colleagues and certainly the public that this effort to modernize Canada's copyright legislation began more than two years ago. This is not legislation that we tabled yesterday and are taking this action on now. This is essential for Canada's digital economy, for our standard on the world scene and to ensure that those who are investing and those who are creating have rights that are clear in the digital age.

It has been 22 years since Canada's copyright regime has been seriously and substantively reformed in this way. We have taken action. We have consulted Canadians widely. We tabled Bill C-32 and re-tabled that legislation as Bill C-11. This debate has been going on for two and a half years. We think it is more than time to move forward. This legislation has been considered more than any other piece of legislation in any one of the last three Parliaments and it is time to move forward.

Report Stage

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

Mr. Speaker, I would like to begin by thanking the witnesses who appeared before the Legislative Committee on Bill C-11.

We heard from approximately 50 witnesses during our study of Bill C-11. Prior to that, 75 witnesses appeared before the committee studying Bill C-32. Well over 100 witnesses shared their views and their concerns about modernizing copyright.

Official opposition MPs worked closely with DAMIC, which I would like to thank, and with the Canadian Conference of the Arts, to draft 70 amendments on thorny issues.

Copyright holder associations, associations of writers, composers, creators, artists, photographers and directors shared their concerns and suggested amendments. This is a compilation of the amendments they suggested.

During our work in committee, we were unable to present all 70 amendments, so we selected the amendments that were most likely to create a win-win situation for everyone, to pass the legislative committee's test and to be agreed to by both the governing party and the opposition.

Unfortunately, the Conservative government rejected all of the amendments we presented, which were not even all the amendments or concerns suggested by the industry and the creators. It as if this hundred or so people representing a variety of organizations came to a legislative committee to describe the problems and propose solutions, but none of these solutions were acceptable to the government.

I must say that this was the first time I had participated in this process, and I found it rather sad, because copyright—the rights of authors—is the very foundation of the ability to innovate and create in the arts, culture and literature. Such a denial of the realities described to the committee may leave us speechless.

With this bill, the government is introducing some 40 exceptions to the Copyright Act. These exceptions are contrary to the spirit of the international conventions in this field, and in particular the Berne Convention for the Protection of Literary and Artistic Works.

The Berne Convention established a three-step test to determine whether or not a work is used fairly and whether it corresponds to the proper use of a work with regard to copyright.

First, the use of the work must not conflict with the normal exploitation of the work; second, it must not unreasonably prejudice the legitimate interests of the author; third, there may be an exception only if the reproduction of the work is limited to special cases.

So here we are faced with about 40 exceptions that could have been special cases, but that seem to be generalized cases of uses that are not, or are no longer, covered by the Copyright Act.

I will use an example that has raised a lot of questions: fair dealing in the education sector. Clearly, when the Copyright Act was created, television, the Web, Twitter, Facebook and the Internet did not exist. The act has had to be adapted, as things have evolved, to take into account technological innovation. Today, the Web has truly transformed the notion of the use of a work, as that notion has historically been understood.

This is particularly striking in the area of education, with the arrival of electronic boards and websites that teachers use to give their classes. Here is an example that I already gave at a committee meeting, but that serves its purpose: imagine that I am an author and that I am writing a book on the Conservatives' tendency to want to limit democracy. That is the title of my book. A teacher gives a class on the evolution of politics in Canada and puts my text, which he found in my collected works, on his website. He asks his students to go and consult the text. As things stand, if the teacher photocopies my text on the Conservatives' abuse of power, as the author I receive a small sum of money, and agreements are honoured, particularly in Quebec with respect to Copibec.

In future, if the teacher posts my text on his website and students consult it, I will not receive a cent. If, on his website, the teacher decides for educational purposes to add an excerpt from a film, which is protected by copyright, he will not have to pay for copyright. If he adds music or a song by Richard Desjardins to his website for the purposes of fair dealing in education, he will not have to pay Richard Desjardins.

So here we are in a new situation where the law allows for widespread use of the products that creators and the industry produce, with no financial compensation. That tears down a model of copyright we are familiar with. This is not a continuation, it is a departure. The Conservatives want to modernize the Copyright Act, but they are breaking from it. They had the opportunity, by modernizing the Copyright Act, to extend the private copying regime to devices that are used to make copies of creative content—texts, music and the rest—but they have refused to expand the private copying system.

For the people watching us, the private copying system is relatively simple and was established when people started to make copies of music and films on videocassette. It made sure that part of the money from the sale of a CD or a videocassette went into a fund to support artists, creators and rights holders. The government could have expanded that system to cover all devices used in the digital era, but it was completely focused on connecting royalties with a tax. It intentionally tried to confuse people and fudge the issue.

I have only a minute left. That is unbelievable—how can I finish in that time? This is a bill in which the government could have simplified things and made things clearer. Instead, it is a bill that will create extreme complications. Everything is going to get settled in the courts. There is the matter of contracts. Contracts are under provincial jurisdiction. Will the government be able to keep these provisions in the legislation? Education is also under provincial jurisdiction. Does the bill infringe on provincial powers? That is a good question. There are also obligations under the Berne Convention. All of the clauses of this bill may be litigated in the courts and be justified by lawyers. It is going to cost authors, composers and creators enormous amounts of money when they have to prove the damage they have suffered. I think the Conservatives could have made it easy and they have intentionally complicated things to please their friends. I am eager to take questions.

Copyright Modernization Act

[Chris Alexander, Conservative, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, it really is a pleasure to rise in the House today as part of this debate on Bill C-11, the copyright modernization act. Like so much of the legislation we are discussing in this session, this legislation is long overdue and badly needed by a sector of the Canadian economy that is absolutely fundamental to our future growth and to job creation in this country in the years and decades to come.

It matters for the artists of this country who have yet to emerge, cut their first album, produce their first painting or write their first play. It also matters for the superstars we all enjoy today who want to take their creations even further. Feist, Cirque du Soleil and dozens of artists that all of us in the House admire enormously are among those who stand to benefit from versions of this act, which is above all focused on modernization in a sector where being up to date has always counted as much as anything else, because the methods by which artists transmit their works to the world have always been changing.

In my remarks, I want to review the path that we have taken in coming to the point of bringing this bill before the House and remind hon. members that copyright is at the heart of our democratic system. It is at the heart of our society and our values, in that it allows us to bring art creations before a larger audience and ensure that creators and artists benefit and are able to be part of a value chain, part of businesses that ultimately form an enormous and growing industry in this country.

It goes all the way back to the time of Queen Anne. One of the first copyright statutes was as far back as 1708. Hon. members on my side of the House will take some pride in the fact that it was a Tory government at that time in England, which is not surprising.

The first legislation in this country came at a very formative stage. In the 1830s, long before the British North America Act was passed, this country was legislating in this field. The original Copyright Act goes back to 1921 and was not updated in any thorough way for a long time, because media had not changed as dramatically, through much of the 20th century, as they have in recent decades. This measure is now urgent.

The legislation in previous Parliaments, as hon. members know, did not come through the legislative process and receive royal assent. I would like to take some time to reflect on how this bill has reached the point at which we see it today.

It is most important to emphasize that this bill built on input from literally thousands of Canadians, and many of the consultations took place in 2009. The response to them was remarkable, demonstrating not only how important copyright is to the digital economy and our global competitiveness but also that Canadians understand how important this is to their lives. If we are not up to date and modern in our legislation in this field, Canadians literally deprive themselves of self-understanding through the best art, stories and representations of the way we live in this country that are available. We are each serving our own quality of life in supporting this legislation.

Through the consultations, the government heard many views from copyright owners, artists, individual copyright users, innovative companies, teachers and students.

The teachers and students told us they need greater flexibility to make use of copyright materials to maximize the opportunities provided by new classroom technologies. That is a fair point.

Copyright owners told us Canada's copyright law needs to reflect international standards in rights and protections to allow them to sustain business models in a digital environment and a globalized context.

Consumers told us that they want to make reasonable use of content they have already bought and paid for.

Furthermore, from all the feedback we received it became abundantly clear how important it was going to be to design a copyright bill that balanced the interests and needs of the full range of interested parties. None of these constituencies was going to get everything it wanted out of this bill; each would have to strike a balance with all the other major interested parties.

Following the consultations in spring of 2010, during the 40th Parliament the government introduced Bill C-32, also a copyright modernization act, and after second reading the bill was referred to a legislative committee. That committee heard Canadians' views over the course of 17 days of witness hearings. In that time, 70 individuals and organizations appeared and 150 written submissions were received, and two key messages emerged: first, the bill struck the right balance between various stakeholders, in the view of the vast majority of those taking part; second, Canada urgently needed to pass an updated copyright legislation to bring ourselves up to date.

Unfortunately, the 40th Parliament was dissolved. Members opposite will know more about the reasons for that than we do on our side. It was an unnecessary election, and it had a cost in terms of the timeliness of legislation and a further delay in the passing of this bill. Therefore, to facilitate swift passage in this Parliament, the government introduced a bill without changes in order to reiterate its support for balanced legislation and to facilitate the modernization of the act.

Then a second legislative committee went to work studying the bill, and it has reported back. That committee held seven more days of witness hearings and heard from 40 additional witnesses.

During clause-by-clause review, the committee adopted several technical amendments. I call these amendments “technical” because they address specific legal and drafting issues in the bill, while preserving the overall balance. They have improved the clarity of several important provisions of the bill. Obviously this world is changing; as a result, the technical background to many of this bill's provisions is changing, and we had to ensure that the bill now before this House matched the intent of the bill and the reality in this sector.

Some of the technical amendments tighten up the language of new measures to fight online piracy. For example, the provisions that create a new civil liability for so-called enablers—services that enable online piracy—have been strengthened. It has also been clarified that an enabler would not be able to benefit from any of the safe harbours in the bill that are intended to apply to legitimate Internet intermediaries when they are playing a neutral role.

We have also cleaned up and corrected ambiguous wording in some aspects of the bill, fully in line with the government's stated intent. For example, it is now specified that new exceptions for copying for private purposes apply only for the private purposes of the person who makes the copy, not for some other person's private purpose. Other technical amendments would reassure Canada's information and communication technology sector that exceptions designed to foster innovation through activities such as security testing, interoperability and encryption research would not provide inadvertent loopholes for malicious activities. The last thing we wanted to do is allow those engaged in piracy to enter, as it were, back into this game through the back door.

Finally, the safe harbours provided to Internet intermediaries have been amended to ensure that the conditions that must be met to receive shelter are aligned with industry best practices. These are just some of the examples of improvements made.

This June will mark the two-year point since the predecessor of this bill was first introduced. That is a long time. It is clear we owe it to all those who participated in the consultations in committee hearings to move forward with this important legislation. Time does not stand still on these issues, and this Parliament will no doubt return to this issue with subsequent amendments and with subsequent legislative measures in this field. However, it is vital to Canada's competitiveness and to the well-being and prosperity of our artists and our cultural industries that this bill now move ahead. Without this legislation, everyday Canadians will not be certain that they are on the right side of the law when they do something as simple as recording a television program for later viewing. Without this legislation, copyright owners will not have legal protection for the digital locks they use to protect their investments in a digital marketplace.

With these modernizations, an already vast industry in Canada will stand every chance of growing, of achieving record levels of growth and taking the richness and all of the diversity of Canada's cultural industries to a much larger audience inside this country and well beyond our borders.

[Jay Aspin, Conservative, Nipissing—Timiskaming, ON]

Mr. Speaker, this legislation, through Bill C-32 and now Bill C-11, has had 150 submissions from stakeholders. We have heard from over 70 organizations. We have studied this thing to death and it is time to move on. It is time for the opposition to stop the delaying tactics and get this bill into legislation.

[Jay Aspin, Conservative, Nipissing—Timiskaming, ON]

Mr. Speaker, every day the NDP delayed, another day went by without a modern, flexible copyright regime to help spur on our digital economy. When it comes down to it, that is what this bill is all about, how rights holders and consumers interact with the digital economy.

We know after listening to witnesses at committee stage on both Bill C-11 and Bill C-32 that this bill will create jobs and support the growth of Canadian businesses in a digital online environment. It will promote creativity and innovation, give Canadian creators the tools they need to combat piracy and better enable consumers and users to participate in a digital age. It is about ensuring that artists can profit from their work in the way that they choose. At the same time it ensures that consumers have access to the latest in creative content on the latest technologies in a way that makes sense.

We believe the bill is sensible. We believe that it is a balance. We believe it is time to pass this legislation once and for all, for the sake of consumers, artists, the entertainment industry and the Canadian economy as a whole.

[Jay Aspin, Conservative, Nipissing—Timiskaming, ON]

Mr. Speaker, I appreciate the opportunity to take part in today's debate on Bill C-11, the copyright modernization act.

I will say at the outset that I support this bill. It is the exact bill that was tabled in the last Parliament as Bill C-32, which reached the committee stage prior to the election last year. It is the exact bill that groups were calling to be passed more than a year ago.

It is the culmination of one of the most extensive consultations that any bill has undergone. More than 9,000 Canadian citizens and organizations have provided their thoughts regarding what a balanced copyright bill should look like. It is from that exercise that we arrived at the balance which we have today. It is a balance with which not everyone is 100% content, but everyone can agree that they have some specific measure that they called for. Canadians can also agree that what we have in this bill, especially with the amendments arrived at during committee stage, is in the right ballpark of what balanced copyright law should look like. It is a hard-won balance, the result of principled compromise, and one which the government is proud of.

Across the way, the opposition parties have talked about this balance in two separate, almost disjointed ways. On one hand, they pit artists against consumers and then they turn around and favour consumers over artists, all the while ignoring the need to ensure compromise.

Over here, we realize that this compromise is necessary because consumers and artists are two sides of the same coin. If artists do not trust the rules that protect their rights and govern Canada's digital economy, they will be reluctant to produce their content here. The government and members of Parliament have heard that time and time again. We have also heard that if consumers are unable to enjoy and use that content in legal ways that make sense to them, there will not be a market for the artists' work. That is why we have created a bill that strikes the right balance between the needs of consumers and users, while at the same time making strong exemptions for educational purposes, or fair dealing.

Given this, the bill is an important stepping stone to the establishment of a strong framework in which Canada's digital economy can thrive. We know that the economy is changing significantly. What we do with smart phones, tablets and computers has taken our economy in a new direction. Artists and rights holders are using the digital economy not only to create new markets, but also to create hundreds of thousands of jobs for Canadians. Those benefits are reflected in the raft of groups that are supportive of this legislation, namely, the Canadian Chamber of Commerce, the Entertainment Software Association of Canada, the Business Coalition for Balanced Copyright, the Canadian Anti-Counterfeiting Network, the Canadian Intellectual Property Council, and the Canadian National Institute for the Blind. I could go on, but I think the point is clear. This bill has wide-ranging support from those who see it as a key platform in the growth of the digital economy and the creation of knowledge economy employment.

I must say that in listening to the opposition members, it is as though they have forgotten the process by which we have arrived here. I have listened with interest to today's debate and it is eerily reminiscent of the budget debate.

In the budget, for example, we on the government side are putting forth a plan on how to sustain Canada's economic health in a time of global economic uncertainty and the opposition is dreaming up new ways to stop our economic growth right in its tracks. We are providing for new, reasonable and economically viable ways to help grow our economy, whether it is through investment in our knowledge economy, sensible changes to the Investment Canada Act, or opening up our telecom sector to increased foreign investment. Like copyright reform, these measures are important for the advancement of Canada's digital economy. The Minister of Industry's telecom announcement will mean great things for the advancement of a rural digital economy in ridings such as my own, as we saw that rural deployment is a strong focus of his. However, the opposition says no to these investments and no to changes that will create jobs and investment right here at home.

In the budget implementation bill, we have proposed practical changes to create a reasonable timeline for environmental reviews while creating stronger environmental laws. We know that in the next 10 years more than 500 projects representing --

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

Mr. Speaker, this legislation is now at report stage after years of debate. One of the things that we keep saying about this copyright bill and its predecessors, in the form of Bill C-32 and before that in 2004-05, is that times change. Technology changes swiftly. The first time I spoke about this legislation in the House was in 2005 when Twitter and Facebook did not exist. They were not part of the popular culture by any stretch.

As a result of technology changing all the time, we find ourselves in a position where sometimes the argument varies. We have been debating this issue for 10 or 15 years. The last time amendments were made was in 1997. Because of the shifting sands and the scope of the argument that we are making, we should be debating this quite often. The debate today will take a different form than what it would have been five or six years ago.

Modernizing the Copyright Act should stand the test of time. It is essential that it be neutral and balanced. It should also be flexible enough in that it can apply to the many technologies that are with us today and will be in the future. These include social media, technologies in the education field, including books, digital or not, and the dissemination of any type of information for profit. In the artistic world, this includes works of art such as songs or movies. My hon. colleague brought up the video gaming industry. That is a prime example of how we need good laws on the books in order for it to protect its property.

All the stakeholders that have been mentioned generally support the bill but they also say that it needs to be changed, that amendments need to be made. No major changes were proposed within the committee structure. That is unfortunate because there seems to be some legitimate claims to this. I will give the House the illustration that I spoke about in my question earlier.

Take the education exemption. Material used for the purpose of education is exempted from copyright. That in and of itself any Canadian would understand. Any person in the world would understand that copyright material can be used to build upon education.

Artists and others base their work on someone else's work. There is nothing wrong with that. That is the whole point of being involved in the world of music and movies. There is nothing new under the sun so therefore we must protect some of this at its core.

When it gets to the point where someone's art or someone's creation is exploited, allowing people to generate money from hard work by someone else, without adding anything to it, without fundamentally changing it and building upon his or her own artistic merits, then we have problems. That is where this legislation comes in.

Let us take a look again at that education exemption. As a result of it being such a blanket exemption, a lot of issues will have to be determined by the courts to see whether the law is being broken. Sometimes there could be a situation in education where someone is breaking the law. Material is being taken and is not only being used for classroom purposes, but it is being dispersed to a wider field. That work is therefore being exploited for profit, or the ability of that piece of work to make a profit is being diminished, and it is quite obvious.

Witnesses told us that we could put in a multi-step test. Even though there is a blanket exemption on education, as responsible people, as legislators, as lawmakers, we could take the material before a court. A judge could look at it and put it to a test. If people feel that a university has used their material to affect their ability to make a profit, it should be put to the test: does it fulfill the requirements of one to six options? Many jurisdictions around the world have done this. There is just no test in the middle between blanket exemption and copyright infringement. There is nothing wrong with putting a filter there to see if it could work. Otherwise the courts will have to decide.

Let us look at another example of Bill C-11. If we look at the logic of it, we have to try to understand why it was written this way, without certain limitations and without certain ways of looking at the unforeseen.

Many jurisdictions around the world went through the same process before we did. They put digital locks or technical protection measures in place and said, “that is that, we will be fine, there are no exemptions to it”. If we digitally lock something, that is it.

However, jurisdictions like the United States of America, New Zealand and Australia realize that we end up roping some of the laws we have placed into our own legislation. Here is an example. Within Bill C-11, if people download a song, they have the right to share this piece of music among other ways of listening. They could listen to it on an iPod or they could download it from iTunes and put it on to a CD. How do they listen to a piece of music that they purchased? They have bought a piece of music that they should be allowed to share. However, if a company, such as Apple, decides to digitally lock it, the music cannot be shared among one's other devices.

If I downloaded a book that was digitally locked, I could not transport it to the new iPad I bought, because I went from a reader that was built years ago. I could not transfer it because of digital locks. According to the law, I should be able to do so. I could get an app that converts it, but the problem is, the right to convert now belongs, not to the people of Canada, not to the government, not to this legislature, but to Apple. I do not mean to specifically pick on Apple. It could be Microsoft or it could be any other corporation.

We need to look at measures by which we could circumvent this when it comes to education. For example, a teacher might get a movie to show the English as a second language class. What if it is digitally locked for the particular player the teacher has?

We have not specifically looked at what I would consider to be sound amendments in this legislation, like the multi-step process. The multi-step process has to specify that even though there is an exemption involved and it is being used in a classroom setting, by putting it out widely among the public, we are basically cutting into the profit of someone who has copyright of the material. That is a question we need to be asking. That is the fair balance that we feel should be looked at. The committee heard from many witnesses, but very few changes, if any, were made. Nothing was changed in the legislation.

I think that international pressure probably came to bear and the Conservatives had to put something out, in light of the situation in the United States or even the European Union.

Motions in Amendment

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, we live in a global, digital world . And yet, Canada's copyright regime has not been updated since the late 1990s, before the dot-com era and before tablet computers and mobile devices gave us access to thousands of songs, moves and apps at the touch of a button or the swipe of a finger.

Modernizing Canada's copyright laws is an important part of the government's strategy for the digital economy. Each year that Canada goes without modern copyright laws, the need for such modernization becomes more evident.

The explosive popularity of social media and new digital technologies—such as tablet computers, mobile devices and digital book readers—has changed the way Canadians create and use copyrighted material.

This is the third time that we have tried to introduce copyright legislation, and thanks to this government, we will finally update our act so that it is in sync with international standards.

I want to emphasize the fact that, since 1997, the government has tried to modernize the Copyright Act three times, four counting the Liberals' attempt in 2005. Parliament began its study of the Copyright Modernization Act during the last session. Bill C-32, the Copyright Modernization Act, was the latest attempt. The bill died on the order paper at the end of the last Parliament in March 2011.

Bill C-32 was the result of eight weeks of open consultations held across Canada in 2009. Many Canadians and stakeholders had the opportunity to voice their views on copyright. Before the end of the session, the legislative committee heard over 70 witnesses and received over 150 submissions. Several thousand online submissions were received during the online consultations. The bill was drafted in response to one of the farthest-reaching consultations of its kind in Canadian history.

The government acknowledges the extensive review and input already provided on the bill, as introduced in the last Parliament, and thanks all stakeholders and parliamentarians for their contributions. The process has sent one clear message: Canada urgently needs to modernize the Copyright Act.

By reintroducing this bill without changes, the government is reiterating its support for a balanced approach to copyright reform. The bill strikes a balance between the rights of creators and the rights of consumers. The new copyright system will encourage the emergence of new ideas and protect the rights of Canadians whose research and development work and artistic creativity contribute to our dynamic economy.

For creative industries, this bill provides a clear, predictable legal framework that allows them to combat online piracy and roll out new online business models. The film industry has suggested that billions of dollars are lost every year to online piracy, even of films that are not yet available in theatres. Last year, the film industry contributed nearly $5 billion to Canada's economy and provided up to 35,000 full-time jobs.

For high-tech and software companies, this bill provides the certainty they need to develop new products and services that involve legitimate uses of copyrighted material. Canadian software companies have openly said that they prefer to launch new products for consoles because they know that as soon as a PC version is planned, up to 90% of video game sales are lost, sometimes even before the products are legally available on the market. Without the ability to protect their products against theft, thousands of Canadian jobs will be at risk, today and in the future.

For educators and students, this bill opens up greater access to copyright material by recognizing education as a legitimate purpose for fair dealing. New measures will allow more efficient ways to teach, conduct research, and deliver course material and lessons using the latest technologies.

It will also allow teachers to distribute publicly available material from the Internet. For entertainers and commentators, this bill includes parody and satire as purposes to which fair dealing applies.

I would like to clarify what fair dealing is, since there are so many poor interpretations out there. Fair dealing is a long-standing feature of Canadian copyright law that permits certain uses of copyright material in ways that benefit society and do not unduly threaten the interests of the copyright owners. Nevertheless, fair dealing is not a blank cheque.

Currently, fair dealing in Canada is limited to five purposes: research, private study, news reporting, criticism and review. To recognize the important societal benefits of education, parody and satire, the bill is adding these three elements as new purposes to which fair dealing applies, as we said before.

The bill will give Canadian creators and consumers the tools they need to increase Canada’s international competitiveness and will implement the rights and protections of the World Intellectual Property Organization Internet treaties. The bill will allow the creation of user-generated content using copyright materials, such as mash-up videos, for posting on a blog or video-sharing site. This bill legitimizes activities that Canadians do every day.

For instance, the bill recognizes that Canadians should not be liable for recording TV programs for later viewing, copying music from CDs to MP3 players, or backing up data if they are doing so for their private use and have not broken a digital lock. The bill also ensures that digital locks on wireless devices will not prevent Canadians from switching their wireless service providers so long as existing contracts are respected. This will not affect any obligations under an existing contract. Finally, it also provides greater opportunities for people with disabilities to obtain works in an accessible format.

In addition, as a result of the committee's examination, a series of amendments to the bill were proposed in order to address certain concerns.

For instance, it was decided to clarify the fact that the provision regarding those who enable copyright infringement applies to anyone who facilitates piracy, even if that was not the original intention.

We wanted to limit the number of lawsuits against non-profit organizations that export adaptations for people with visual impairments to another country by mistake. This amendment is meant to protect Canadian organizations that might be sued for accidental violations.

The clause concerning those who enable copyright infringement will be amended to address concerns about how sites used purely for the purpose of piracy are protected. This amendment will not affect search engines.

In addition, safe harbour for those who enable copyright infringement will be eliminated. We want to clarify the scope of permitted injunctions against search engines and clarify the time frame for notices of violation by replacing the words “without delay” with “as soon as feasible”. We also have to clarify how service providers and information and education technology store and index information to permit indexing without liability. We also have to clarify that the clause on access to copies for format shifting and time shifting applies only to personal use, including personal use by households.

Lastly, we want to change the wording to ensure that copyright holders can apply under each of the international treaties that Canada is a party to.

This bill also mandates a review of the act every five years to ensure that the legislation is up to date, applicable, and in step with technological change as Canada's economy moves forward. The proposed changes will enhance copyright holders' ability to benefit from their work. Internet service providers, educators, students and entrepreneurs will have the tools to use new technology in innovative ways. Measures like these will ensure that Canadians can prosper.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, we are talking a lot about digital locks, which is understandable because they are one of the easiest things to see. When there is a digital lock, people see it and they know that a right is being protected under a padlock. We talk about this a lot, but I wonder whether people, the legislator, have not focused on this much because the corporations, the multinationals, are focusing on it in order to protect their works.

There is no doubt that the major multinationals in this world have been installing locks for decades, rightly or wrongly. They have been installing locks whether they have the right to or not. That is the issue. When we look at this legislation, we get the impression that those with the loudest voices and the most money are the ones who were heard: in other words, the major lobbies and the major industries.

That is rather pathetic because people forget that creation and culture are essentially the story of individuals, of people who have ideas, people who are encouraged to think differently and to see the world in a different way. Without arts and culture, everything would be black and white and that would be dull.

Today, all of these creators help form our identity, what is known as Canadian cultural heritage and Quebec cultural heritage. Creation is what matters. This is crystal clear, considering the whole process related to Bill C-32. I was not a decision-maker in the process at the time, but I once worked in the cultural industry. Now that I am a decision-maker in the process linked to Bill C-11, I can say that the Conservatives did not listen to creators. Instead, they listened to lobbyists and large corporations that have assets and want to invest here and there—major networks, cable, antennas—big business. That is fine, because it is important to have business. We need a way to disseminate people's ideas and our heritage.

The saddest part of all this is knowing that the Conservative government is behaving as it always does: blindly and lazily. Listening only to those who shout the loudest is the lazy way. Copying whatever the Americans are doing is also the lazy way. Our colleagues across the floor seemed to take an attitude of crass laziness towards the witnesses who appeared before us, telling us their stories and telling us about how they live—the people from the industry who create the heritage that makes us unique. We are all proud of our heritage. Whether one is from Quebec, Ontario, British Columbia or the Maritimes, we all have an identity that we want to protect. It is what distinguishes us from our neighbours.

Unfortunately, when these people come to the table, the questions they get asked are totally incoherent. These witnesses come to complain about the fact that they have lost—or will lose, if the bill passes—their broadcast mechanical, and the person across from me says that they are selling music to radio stations. The witnesses explain that they are not selling music to radio stations, that they are just suggesting music for the stations to play and that they are happy with that. Then they get asked why the radio stations should have to pay, since they are happy that the stations are playing music.

This system has been around forever, and it works well. According to radio stations and music producers, the system has always worked well. Then the government stomps in, saying that it is no good and that since the radio station people would rather not pay, then they do not have to pay anymore. The government tells artists that it is enough. Basically, that is what is happening. It happened with broadcasters, and with the transfer of use of cultural or literary material in schools. There were agreements, like Copibec—systems, shared royalty collection systems, a common management system for those rights.

These systems were working very well. Then the government came out and said that this was no longer how it was going to be done. Honestly, there was no problem. In general, the education sector was not complaining and did not feel that it was paying too much. When it is your job to teach young people and show them how to think independently, paying copyright fees to someone who is transferring knowledge via a page in a novel is not a problem. You pay the author. There has never been a problem with that. And then someone comes in like those guys over there, asking if people would rather stop paying, and all of a sudden people start thinking about how much they would save.

We are all aware that the education sector is searching for money wherever it can find it. And so, if the education system can save $3,000 a month, there is a lot of interest. Wow. Off we go. Thanks very much, ladies and gentlemen. Things were working quite well, and then—badabing—here comes the government and it is all over. This heavy-handed approach relies on listening to the industry rather than the creators. Unfortunately, when the creators are not heard, the ones that are heard the least are those in Quebec.

I have heard the hon. members opposite say that they recognize the Quebec nation, but I look at Bill C-11 and see that it is a worthless gesture. They care nothing about how they do business or about how Quebec's creative people make a living. It is not important to them; they want to do this, so they do not listen.

When the Minister of Canadian Heritage appears on Quebec television and sweetly rhymes off the names of Éric Lapointe and other artists, it is all a sham. Everyone in the arts watches him but does not wish him well, in fact.

As my colleague from Davenport was saying, the artists are losing $20 million. That is horrendous. And then what can we say about the other losses coming from adding sections 29.22 and 29.24 to the Copyright Act, a fine law that has served us well, by the way. These sections make it possible to make all the copies anyone might want, as long as they are not given to another person. What a big, fat joke.

The entire music industry in Quebec is outraged, because, once again, no one has been listening. There is no willingness to try to understand. No, they want to copy the big players, like Sony in the United States.

In reality, Quebec artists will now be like hawkers who sell their wares on street corners. They will no longer be able to earn a living by selling their music, as they did previously. They will have to put on shows.

We keep hearing that people such as stage technicians are pleased with this bill. Yes, I understand that they are pleased; that is obvious. However, I do not believe that sound engineers working in a studio or people who create music but do not put on live shows are happy with it. And when I hear that Canadian photographers are pleased, I can understand that, because there are no big corporations that take a cut in that sector. But there are in the world of music. Honestly, the only word that comes to mind to describe the bill is “lazy”. That is the reality.

The impact of this bill is clear: artists will lose about $50 million. How is it that we are interfering once again in a process that worked for artists? That bears repeating. Without getting into the specifics, a few years ago, the Copyright Board of Canada told the radio people that the situation regarding recorded music made things difficult for musicians and artists and that solutions had to be found to improve things. Radio broadcasters were asked to contribute a little more by paying mechanical rights. Previously, radio broadcasters made a copy and played the LPs on a turntable. Now that music is downloaded from the Internet, they have to pay a royalty if they make a copy for their operating system.

The broadcasters agreed because if you want to make cheese, you have to feed your cows. Cows have to eat. If we want music, then artists have to be able to make a living. The government is swooping in, cutting left and right and it is over. Broadcasters will be able to make copies without paying. Copyright is indeed very complicated, which is why I cringe when I think about these slapdash amendments, when people have not had the chance to attend these debates in committee.

How can the government just swoop in today and say that the broadcasters will not have to pay these mechanical royalties anymore without any proposal, promise or agreement to tell the musicians that we will look into it?

If I were an artist with a guitar, as my colleague was saying, I would do better here in this House. Honestly, what are artists supposed to live on? The Conservatives have said nothing about an alternative to paying mechanical royalties. Nothing.

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

Mr. Speaker, I was going to say that I see the member for Timmins—James Bay's contributions to the legislation. I did not violate the rules.

This has been a long slog. I know that other members of the House, including the member for Halifax West and others, have been along this long journey of almost three years now of consideration of modernizing Canada's copyright legislation. When the time comes when we speak of our political careers in the past tense, we will think of how we had been elected for a while and talked about copyright, and some other stuff went on. However, this is important legislation, and I am glad that we have had such a thorough conversation with regard to copyright.

On the substance of this legislation, we have put forward in our throne speeches the need to advance Canada's copyright regime and to modernize it. It has been 13 years since Canada's copyright legislation has been substantively improved, but it has been about 22 years since it has been really looked at with this kind of depth and effectiveness.

When we started our process, we had legislation in the previous parliament, the 2006-2008 parliament. That copyright legislation generated a great deal of conversation and, it is fair to say, a great deal of controversy. Using that as a basis for kick-starting the conversation that led to Bill C-32, our government engaged in unprecedented consultations with regard to copyright. We had online consultations, round tables and open town hall forums all across the country. We received tens of thousands of views submitted from Canadians all across the country, written, online and in person. This has been one of the most open and transparent processes that I have ever seen in my 12 years of public life. The way in which this legislation was arrived at was not done in hiding or behind closed doors. It was arrived at in a very public and open way.

What we have achieved with Bill C-11 is a real balancing of Canada's intellectual property rights needs going forward, most important of which, by the way—and I appreciate the sentiment of the leader of the Green Party in the House—is the need for further tweaks to this legislation.

The reality is that intellectual property law is an ongoing moving target. It is not a black and white issue. It is not a simple left or right divide. There is not a simple regulate-deregulate divide. There is not a simple technological divide either.

What is really needed for this country to move forward is actually what I find the most important section of this legislation. It is the provision mandating that every five years, regardless of who is in power or who is Minister of Canadian Heritage or Minister of Industry, and regardless of political circumstance or minority-majority parliaments, Parliament has to re-engage the debate on intellectual property and copyright law to make sure we are not lagging the world but leading it in the best kind of intellectual property law structure possible. That is what we put forward with Bill C-11.

I am proud to stand by the substance of Bill C-11. We have arrived at an effective balance that will serve Canada very well. What is most important about this legislation is that it will continue a debate going forward so that we will continue to be on the leading edge of what is in the best interests of Canada when it comes to intellectual property law.

When we did consultations after we tabled the legislation in this House, Canadians spoke out quite clearly, and we have a very broad base of support all across this country for this legislation.

For example, the Council of Ministers of Education, which is every minister of education in every province of the country except for the province of Quebec, came out and said that this legislation provides the clarity that they had been looking for and that it was excellent that the bill would allow students and educators to use the Internet to learn and teach without fear of copyright infringement.

The Entertainment Software Association, which represents Canada's video game industry and constitutes about 15,000 very high-paying jobs in this country and important jobs for the future, said that it congratulates the government on this copyright legislation.

This legislation will help protect Canadian creators. It is good public policy and it is essential for our economy.

The Canadian Media Production Association said that it applauds the government's copyright reform and legislation.

The Canadian Anti-Counterfeiting Networks applauds our copyright bill as well. It stated:

Arriving at the correct balance between the rights of creators, users, producers and distributors of copyright works is a challenging task and CACN applauds the Government of Canada's efforts to do so.... [New legislation] is long overdue...[and] we strongly urge Members of Parliament from all parties to act quickly and decisively in passing legislation....

The Edmonton Journal, the media watcher of this House that has been paying attention to this debate for a long time, said this copyright bill is a welcome start and stated:

To be sure, something had to be done. It's been 13 years since the last changes were made—arguably 22 years since substantive reform—and...It's a different universe out there.

The Canadian Photographers Coalition stated that they welcome the government's copyright reform and said:

These amendments should allow Canadian small business photographers the opportunity to generate additiona; revenues for their commercial work.

The Canadian Chamber of Commerce said, “the bill lays the foundation for future economic growth and job creation. The bill is critical to ensuring competitiveness and a stable business environment in Canada's digital universe”.

The leader of the Green Party talked about the importance of education as part of this debate. The Canadian Alliance of Student Associations said, “The government has demonstrated a commitment to Canada's education community. Students across Canada are greatly encouraged. The government has a clear understanding of how this bill will impact Canada's students, educators and researchers”.

The Business Coalition for Balanced Copyright said, “The government has taken a common-sense, balanced approach to copyright legislation. It's a positive step toward modernizing Canada's copyright laws and it achieves balance between the interests of consumers and creators”.

It is not just those organizations but, as I said, cultural industries as well are speaking out strongly in favour of this. For example, the International Alliance of Theatrical Stage Employees said, “We applaud the government's move forward with Bill C-11. This bill will help over 16,000 workers in Canada's entertainment industry stay employed. Piracy is taking money out of our workers' pockets. Canada needs copyright legislation that will protect and create jobs, stimulate the economy and attract new investment into the cultural sector”.

I could go on but I have given a healthy and balanced sample of individuals and organizations who have come out and said that this legislation is the appropriate balance and it strikes the right chord for Canada's future. It would be unfair for me to suggest that all of these organizations are happy with all aspects of the copyright legislation because that would not be true either. Intellectual property law is incredibly complicated. It is a balancing act. It is balancing the needs of creators, consumers, individuals, organizations and industries with the rights of citizens to be able to use copyright material in effective and personal ways. It is about striking the right balance. It is also taking into account our responsibility on the international stage.

Many elements are at stake when drafting effective copyright legislation. Even after the consultations we did prior to tabling Bill C-32, after which it flipped into Bill C-11 in this current Parliament, we had well over 100 witnesses come before the two committees combined in both Parliaments. We still took written submissions from Canadians who had their views and wanted to have those views further heard on the legislation after we tabled it. Even with that, we amended our legislation further with 11 amendments that were important to strengthening the legislation to keep it moving forward. So we were more than open in the beginning and during the process and we have been open through all of this.

However, it is time now for certainty and for us to move forward. After almost two years of debating this legislation, it is time for us to get on with passing it, to get this done and to give Canada the best intellectual property structure and laws possible. Bill C-11 would strike that balance. Some people want some amendments that are not on the table, that we have not approved, but when we look at the core of this legislation and the balance we have struck, it is fair to say that our government has been more than open about listening to Canadians, arriving at legislation that works and putting in place a formula that would lead Canada in the right direction for years to come, for ongoing consideration of our intellectual property framework that would serve Canada's interests, both as creators and consumers, for generations to come.

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

Mr. Speaker, I am very pleased to be here to resume debate of Bill C-11, An Act to amend the Copyright Act, with the other MPs here in this House.

This is a very important issue for Canada and for the government. This bill is one of our government's top priorities.

At the outset I would like to say thanks to all those members. June will mark two years since our government tabled Bill C-32, which was the predecessor legislation to Bill C-11. It is coming up on two years now since our government tabled legislation on this matter. A great deal of work went into Bill C-32, which led to Bill C-11. Months of consultations took place prior to that.

We are actually approaching three years of consideration of this legislation. I think it would only be fair to note all the members of Parliament, some who were not re-elected and some who are in the House today. I see the member for Timmins—James Bay. I know the member for Davenport and others—

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I rise to speak for the second time to Bill C-11, an act to amend the Copyright Act. The first time I had the occasion to speak to the bill was at second reading, on November 22 last year. I had hoped at that time we would see significant improvements made to the bill through the committee process.

There have been several tries at amending copyright law. The first attempt to bring copyright law into the digital age was made back in 2005 by the previous Liberal government. Subsequent bills were brought forward, most recently, Bill C-32, which is what we see now, pretty much unchanged, as Bill C-11. In the process between the previous Liberal government's attempt in 2005 and the bill presented by the current Conservative majority government, we have seen a leaning toward the rights primarily of U.S.-based entertainment industries.

I am not a member of the parliamentary committees, and I certainly am not making that point to complain. I understand my position here as leader of the Green Party of Canada. The Green Party is a recognized party in the House, but my rights, obligations and opportunities are closely aligned with those I would have had if I had been an independent member, a member of no party at all. Strangely enough, that gives me superior abilities at report stage to bring forward amendments that are substantive, which I could not have brought forward today had I been a member of the committee.

With that small digression I will just mention that although I am not a member of the committee, I tracked very closely what occurred at committee. Thanks to the able assistance of the wonderful young people who work on my team, and I am very grateful for their help, I was able to carefully monitor the evidence and review the testimony of expert witnesses who came before the committee. It was very compelling testimony from very knowledgeable experts in the field of copyright law in the digital age, which admittedly is a complex field.

One of those experts who is often cited and has made valiant efforts to see this legislation improved is one of the country's leading experts, Michael Geist, a professor at the University of Ottawa. He has been saying for some time, and I invoked his words when I first spoke to this bill at second reading, that the bill was “flawed but fixable”.

We had a chance to fix it at committee and we did not. It is my hope that the hon. Minister of Canadian Heritage, who I think deserves a lot of credit for the bulk of what he has done on this legislation, will allow Conservative Party members to consider favourably amendments being put forward now so that the bill, when passed, will not just be new copyright legislation, but will be excellent copyright legislation. We have that possibility but we will need amendments to get there.

The 18 amendments that I am putting forward today fall into two general areas. The Speaker has grouped them as such, and I recognize that, but I propose to speak to both groups at once. The two areas are to improve the clarity around the term “fair dealing”, particularly in relation to the new insertion of educational provisions, and to address the overly onerous provisions to protect material against digital locks. Digital locks are referred to in the law as technological protection measures, TPMs.

I propose to try to explain these in layman's language in the next few minutes to make sure they have a fair chance of being accepted by other members of the House who, like me, were not on the committee, but perhaps, unlike me, were not following the evidence as closely.

“Fair dealing” is a very straightforward term, but it does not have the meaning one may think. “Dealing” sounds as though we are making a deal with someone. This is basically copyright law, so we are asking whether the way one uses someone else's creative work is fair. We have a lot of case law on fair dealing. We cannot define what it is or is not. It is not a question of being able to quote a paragraph or a page and acknowledge who the author was. In certain circumstances we could quote a page, and in other circumstances we cannot quote a paragraph. It depends on what the purpose and intent is and whether the intent infringes the creator's rights under copyright law.

In the concept of whether one is using someone else's creative work fairly, we have changes in the legislation which, for the most part, are quite good. We are now saying one can use someone else's work if the purpose is for parody or satire. Those words are not creating any problems for us today at report stage.

However, the government threw in “education, parody or satire”, and the use of the word “education” does create some concern, primarily because “education”, as a term or exception under copyright use under fair dealing, has not been previously defined in the courts. It could lead to significant litigation to expand or narrow the meaning in ways that would be prejudicial to the average person who wants to use the material. Given that those people who might want to change the law in ways that restrict consumer access and normal opportunities to use materials are those with the greatest and the deepest pockets to go to court to prove this, it seems that down the road we might want to improve the way the bill currently reads and to create an opportunity by regulation for the Governor in Council to provide a definition of “education”, which is currently not in the bill, in order to leave that flexibility in place down the road. That is what my Motion No. 3 stands for: that the Governor in Council may make regulations defining “education”.

This very specific amendment comes from testimony by Giuseppina D'Agostino, a professor in intellectual property at Ogoode Hall Law School. She also teaches at York University. Back in 2010, when this legislation was Bill C-32, the comment that Professor D'Agostino made to explain this amendment was this:

This would allow for a more evidence-based approach and allow government departments with expertise to helpfully collect evidence and be specific on what they need to cure by legislation, and to be nimble and flexible in making adjustments to copyright problems in the educational sector as they arise from time to time.

That is all I propose to say on fair dealing. It is a big topic, but I want to move on to the question of digital locks. Most of my amendments relate to this problem.

Digital locks make sense. The whole scheme of this legislation is about protecting the rights of a creator and balancing the rights of the creator with the rights of the consumer.

This legislation attempts to bring Canadian law up to speed with the international obligations that Canada has undertaken through what is generally called the WIPO, the World Intellectual Property Organization, copyright treaty.

The problem I have with Bill C-11 is that it extends well beyond WIPO requirements; in fact, the scheme it would create would be among the most restrictive schemes anywhere in the world. The plain common sense explanation of this is to imagine that an individual has the right to put on a lock on something to protect it if that individual has the right to do so. No one has a right to break the lock if that is the person's property, and getting through that lock is the same as stealing.

However, we have exceptions in the bill that say people's intellectual property can be used for creative purposes, for satire and for parody.

What if the individual does not have the right to lock it away? Under this legislation, breaking the lock would still be illegal.

It was explained well by John Lutz of the Canadian Historical Association when he was testifying about previous Bill C-32 before committee. He said that the new law brings copyright legislation last amended in 1997 into the digital age: “Consumers will, for example, be able to make private copies of digital works to carry on different devices like an iPod, a smart phone or a laptop without breaking copyright. There is, however, one important exception, and that is if the vendor does not want you to make a copy. All a vendor has to do is make otherwise legal uses illegal is put a digital lock on it. A digital lock...”, and he goes on to describe it.

This legislation not only indicates that a digital lock cannot be broken but also indicates that it would be illegal to produce the kind of equipment or technology that would help someone break a digital lock.

I will not go through each of my amendments one at a time. They essentially speak to the following principle: if in all other circumstances under the bill the use of the material under a digital lock would be legal, an individual should be allowed to break the digital lock. A digital lock should not trump all other rights under the bill when it is fair dealing, when it is otherwise appropriate and someone wants to get access to that material.

It could be as simple as a mistake I once made in Amsterdam: I bought a movie that I really wanted to watch and when I arrived back in Canada I could not watch it. I still cannot see it.

I ask the Minister of Canadian Heritage to consider these circumstances in which no one has any intention of breaking copyright. They just want to be able to view or access something that they normally would have a legal right to do. Digital locks should not trump all other rights.

I commend the Minister of Canadian Heritage for his hard work. I ask him to please consider amendments at report stage to improve this legislation.

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Mr. Speaker, that is not our intention. It was mainly about the opportunity to make amendments that will make people aware of the fact that this bill is completely unsatisfactory.

I know that my colleague is an artist and, because of Bill C-11 and its predecessor, Bill C-32, I am happy that he is an MP. Finally, he is doing better than if he were an artist. It is not that I do not think he is talented, on the contrary. But one thing is certain: this bill puts a serious damper on emerging artists' hope that they will one day earn a living from their work.

In my riding, many painters have the opportunity to showcase their work at a number of artists' symposiums. The career of a young woman from Victoriaville, for example, took off thanks to her hard work and talent. She left her day job. She believed in her art and wanted to be an artist. She was lucky that people believed in her. But today, knowing that it would be increasingly difficult to earn a living from art and culture, I am not sure that we would see her work in major galleries, as I did in Quebec City. For that reason, the bill must be amended.

Mr. Speaker, I am pleased to rise today to debate the amendments proposed by the Bloc Québécois to Bill C-11. This is not the first time the Bloc Québécois has spoken against this bill. The government is presenting the same content it presented in the previous Parliament as Bill C-32. There are, in fact, no changes, although we had asked for changes.

We must be clear that not everything about this bill is bad. Changes certainly were needed with respect to copyright, especially in the field of new technology. Such technology really is new and was previously quite rare. In fact, some technologies did not even exist the last time. Now we must consider copyright as it relates to iPods and even the Internet. Thus, there are changes that follow naturally from progress and current events. Still, the government has once again rushed headlong into legislation without really consulting consumers, authors, artists and creators, of course, or a lot of other people.

Some parts of the bill are good, others are not. Therefore we have to try to introduce amendments. This gives us the opportunity to talk about Bill C-11 and the amendments that should be made. As it stands, the bill clearly favours big business over artists.

As my colleague from Bas-Richelieu—Nicolet—Bécancour is present, I would like to mention that, a little over a year ago, his initiative resulted in many artists coming to Parliament Hill—including his brother Luc Plamondon, the well-known lyricist—to meet with all the political parties. I do not know if they managed to meet with everyone, but I do know that a room was reserved in order for all the political parties to meet with these artists who came to tell us about the problems that Bill C-11 would create in terms of copyright.

When discussing copyright, we should not forget that MPs get a monthly paycheque. Factory workers get paid every week or perhaps biweekly. Everyone is compensated for their work no matter what sector they work in. Authors are compensated through copyright. When we take a look at the percentage of authors who earn a living from copyright, they are just barely surviving. By cutting this source of income, we are clearly telling the artists to work, to create and to do it for free.

A large number of creators came to Parliament Hill by bus. I do not know if it was the show business bus. However, one thing is certain: many stars were present. Artists from my area—Robert Charlebois, Dumas, Marie-Mai—were there. All these people came, not just because they are stars but also because they are often the spokespersons for other artists. All these stars are doing quite well. But there is a whole other group of artists, whom we could call emerging artists, who also deserve to be compensated for their work.

I commend this initiative by my colleague and that of former MP Carole Lavallée, who also did a tremendous amount of work on this file to help artists raise awareness among hon. members. Apparently it was not enough, because in this Parliament, after the election, the Conservatives reintroduced exactly the same bill and only changed its number. It is now Bill C-11.

It is a carbon copy of Bill C-32 and, like its predecessor, it seriously undermines creators and artists, who are the foundation of Quebec culture. Creators are not receiving their due under this bill. The Conservatives refuse to let them have royalties for the use of their works on new media: iPods, MP3s, the Internet and so on, as I was saying earlier. Internet service providers are not being held accountable under this bill, with some exceptions. As I was saying, that is why we are proposing amendments, in order to amend the bill to make servers and Internet service providers suitably accountable.

The Bloc Québécois supports copyright reform, but not what the Conservative government is proposing. If the government had wanted a serious bill, it would have consulted the stakeholders—I listed them earlier—including, chiefly, creators, consumers, the people who are specifically affected by these piecemeal measures that are likely motivated by this government's ideology and its bias for big business.

Nor is it surprising—because I was talking about Quebec culture in particular—that the Quebec National Assembly has unanimously denounced this legislation, which does not ensure that Quebec creators receive full recognition of their rights and an income that reflects the value of their creations.

It is clear that this bill will make our artists poorer and will benefit big corporations. The Conservatives did not listen to any of the legitimate criticisms and are proposing amendments that would significantly benefit the software, gaming, film and broadcasting industries, at the expense of our artists' rights. This explains why the representatives of 400 industries, 38 multinationals, 300 chambers of commerce and 150 CEOs applauded Bill C-32, while artists and even the Union des consommateurs, just to name a few, are condemning the bill, and rightly so.

Speaking of people who condemn the bill, I would like to quote Gaston Bellemare, president of the Association nationale des éditeurs de livres. In an article I read in Le Devoir some time ago, here is what he had to say about Bill C-11:

This is a direct attack on the values that have always defined Quebec...

Make no mistake, creators and cultural industries are not fighting for protections equivalent to those elsewhere in the world, despite the fact that globalization forces everyone to share the same playing field. That battle has already been lost. The United States, France, England, the giants that captured our markets quite some time ago...have increased the duration of protection to 70 years following the death of artists in order to provide an income to their descendants.

In this case, this is not even about income for creators. Of course, that is part of it, but we also need to think about the future, the people who will follow and who are family members of these artists, including both famous artists and lesser known artists. Canada obviously does not have these kinds of measures.

The battle to extend private copying levies to digital audio devices and e-readers has also been lost. The media campaign against the “iPod tax” [as the Conservative government called it] managed to convince consumers that the few extra cents collected on their mobile devices for creators would be an unacceptable hidden tax.

I just quoted Gaston Bellemare, president of the Association nationale des éditeurs de livre.

The Bloc Québécois has been accused of advocating an “iPod tax”, but this is not an iPod tax. It is a transfer based on how people are using contemporary platforms, and iPods are contemporary platforms. I apologize for using the brand name. People also talk about MP3s and other digital audio platforms.

I am old enough that I still own cassettes, which my girlfriend says is ridiculous. Not eight-tracks, but cassettes that I recorded music on. When we bought blank tapes, we paid a certain amount to cover copyright. We could not complain about that because we bought the tapes to record music, maybe music borrowed from a friend on a vinyl record. The sound quality was exceptional at the time, except for a little squeaking, but I think that was part of the listening experience, which some people find nostalgic and which can still be found today because it is still around. Obviously, we were not buying the records, so there had to be another way to compensate for copyright. I have many tapes like that, and I paid some form of copyright on all of them.

Now, I am also young enough that I have used blank CDs—that was the platform at the time—to record other CDs for personal use, not for sale in flea markets. People buying blank CDs paid a certain fee for copyright.

This is the same principle applied to digital devices. There is nothing wrong with adding a certain fee to the purchase price so that artists can be paid for their work. It is only fair.

In conclusion, there are many reasons, including this one, why we cannot agree to Bill C-11 as written.

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

Not from my Quebec colleagues, no.

You've done excellent work, Mr. Chair, and we want to thank you.

We'd also like to thank Mr. Brown, who was our previous chair on Bill C-32. We did a lot of prep work for this through the previous committee. That committee did excellent work as well.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chairman.

In going through the process of listening to witnesses on this bill, one thing remains fundamentally clear to me and to members on the government side. To begin with, we heard from representatives from Music Canada. We heard from representatives from the Canadian film industry and others. We heard from software creators. We heard from gaming creators. We heard from a very broad cross-section that was very clear about the fact that without the ability to protect their work, without the ability to ensure that their work cannot simply be taken without remuneration for that work, technical protection measures are critical.

As we've said many times, we believe that this is a business-to-consumer decision. The market will determine whether or not TPMs are supported.

I raised many times, I believe, on Bill C-32 that I have bought hundreds of CDs and hundreds of DVDs. If I'm not allowed to format-shift them, I just won't buy any more of them. It's up to the companies that have created them to determine whether they want to allow me the ability to format-shift them.

New technologies are coming out all the time. The cloud that's been created by TBD Networks and others has virtually eliminated the need to buy your own copies of works, and people pay a monthly fee for that. The decision to take advantage of that is a decision being made by consumers right across this country.

What we do know, and we know very clearly, is that Music Canada came in and indicated that some $800 million in revenues has gone missing. That's money that's not going to artists. It's money that's not being reinvested in the industry. And it's money that is being lost each and every day by the Canadian economy.

We know that the film industry came in and said that for their industry, it has been more than $1 billion. That's money, again, that's not being invested in Canada. That's jobs that are not being created in Toronto, Montreal, or British Columbia, or in any other of the provinces and regions in this country where great films have been made and where more could in fact be made.

We also know that companies such as Google and ESA and others have indicated that their investment in Canada could grow, and will grow, if we put in place the kinds of protections they need. These protections, under technical protection measures, are critical for enabling the next generation in communications.

Those who have suggested that we can allow folks to simply breach TPMs for non-infringing purposes are being blissfully naive to the reality that this will in fact enable the piracy we have seen in this country, the piracy this bill seeks to put an end to. And frankly, it will cripple what has been an effort to ensure that those who create copyrighted materials are in fact paid for those copyrighted materials.

These amendments being sought by the opposition on this specific clause would render many of the other measures in this bill meaningless. That's why we can't support them.

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

Thank you.

This has been a real concern for us since it was first put into the old Bill C-32. A number of concerns have been raised about this, particularly the sense that it's creating a two-tiered set of educational rights—that students who leave a classroom are not frisked for their notes or for their reproductions that might be part of the lesson plan, but if they're taking any kind of online development, they will be obliged to destroy reproductions 30 days after the course ends.

The other day it was raised by our colleagues that if they were watching this as a video—not that I think students watch video anymore, but still if we are going back to old VHS tapes and they're watching the feed—what would happen if they made copies and gave it to their friends? Well, education might break out.

It seems to be an unnecessary intrusion into the affairs of the classroom that if materials are being protected under collective licences and the authors are being paid if exceptions to copyright are being made under educational purposes that would exist in a classroom—for example, if students make a copy when they receive their lesson plan and they take a copy from a PDF that's under copyright and they put it in their notes and then they bring it as part of their final work—that they would have to be responsible for finding what's under the exceptions and what isn't and would have to be destroyed. It seems to be an unnecessary overwrite and interference in the potential of digital learning.

What we think, with the importance of digital learning, is that we have incredible opportunities for Canadian educational institutions. We should have good collective licences in place to ensure that the people who are creating the works are being compensated, but this doesn't seem to address any of the basic needs. So we would be opposed to it.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Thank you, Mr. Chair.

With this bill, the Conservative government will have once again shown that it doesn't listen. It is interfering in many areas of the cultural industry, stirring up ill-feelings and breaking up systems that were quite effective. Rather than looking for "made in the U.S.A." methods, as it likes to do, the government should have drawn inspiration from several options that have, so far, created a nice balance in Quebec.

Quebec has a lot to say about the cultural industry, and with good reason. Quebec culture is neither folklore nor heritage; it is avidly consumed every day. We watch it on television, we read it, we listen to it, we see it in the movies. I'm not talking about a virtuous interest stemming from an awareness of the history, but a real living language, a deep and daily identification. What distinguishes the Quebec nation has generated the commitment of businesspeople and tradespeople who are behind these authors. These people have a market-based approach, and they have exchanged and created many links internationally.

It is with much enthusiasm that I will try to contribute to the efforts made by organizations, including the Canadian Conference of the Arts, to create even more links between the cultural stakeholders of Quebec and others across Canada. All of Canadian culture will benefit from the expertise of the Quebec entertainment industry.

The Quebec cultural environment has mobilized because the balance achieved is threatened by Bill C-11 in several ways. Quebec's cultural know-how wasn't considered in either the preparation of the bill nor in the hearings, including those on Bill C-32 and on Bill C-11. Furthermore, I'll note in passing that the Conservative members of this committee have never ever spoken in French!

Once again, this government has slammed the door on Quebec's face. This contempt has very concrete consequences. Bill C-11 doesn't repair the immense loss of revenues related to the technological development of private copying.

In proposed clauses 29.22 and 29.24, the general flow guarantees copying for personal use without framing the legitimacy or providing royalties. We all know that it is legitimate for consumers to digitize a CD they bought in a store so they can listen to it on whatever platform they own, and that if everyone filled their iPods with music from iTunes, as suggested by Apple, there would just be new distribution methods. But this new digital formal has led to an alarming statistic we all know: nearly 90% of the music on an average iPod is pirated.

So I call upon my colleagues from all parties to study in good faith the update of the royalties system on private copying, royalties that belong to the authors. Because the audio cassette and then the CD-R make private copying possible, this system of royalties must take into account new technologies that both facilitate the life of authors and make it easier to steal from them.

Thank you, Mr. Chair.

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

We would like to move our amendment on the artist's resale right, if this is the time, and just to clarify for the record, this was spoken at our committee under Bill C-32. We had a number of people come forward to speak on it, and the policy of Bill C-11 was that we were not going to allow repeat witnesses, so testimony that was given on the issue of the resale right was actually given in the previous Parliament. This is why we felt this was something that should be brought forward because the witnesses spoke on this—

[Catharine Saxberg]

That's what it looks like. When we started looking at Bill C-11 and its predecessor, Bill C-32, we could see that there was a potential for this loophole, and we raised our concerns at that point. Upon reviewing the broadcasters' submissions, it looks like the broadcasters were—in writing anyway—saying that the 30-day exemption was what they wanted. We kept saying that, despite what they were saying in writing, we thought their true intention was to create a back-door loophole.

I was surprised a couple of weeks ago to see a broadcaster from Edmonton at a town hall meeting—held by a Conservative MP, actually—say that he didn't like this so-called “tax” on the transfer of CDs and that he was glad to see it was being repealed. It was going to be a big nuisance for him to have to make all of these copies. It was the first time that I had seen a broadcaster say out loud that this was what their intention was going to be: they were going to hit “control and delete” every 30 days.

Last week, after hearing testimony that this was in fact a problem, it seems that we've fallen down a rabbit hole. There has been a real shift in the broadcasters' game plan, which is contrary to what they asked for on Bill C-32 and is contrary to the intention of the government.

[Victoria Shepherd, Executive Director, AVLA Audio-Video Licensing Agency Inc.]

Thank you for the opportunity to appear before you today.

My name is Victoria Shepherd. I am here on behalf of the AVLA Audio-Video Licensing Agency, which represents over 1,000 members, including major and independent record companies and many independent artists, representing the vast majority of music played on radio stations in Canada.

I would like to express our enthusiastic support for this initiative to modernize Canada's copyright laws.

Creators and copyright owners need a clear legal framework that protects their work in today's digital marketplace. We applaud the government's effort to create new rules that will enable our members to sell and license their creative work.

I am here today to draw your attention to two issues regarding Bill C-11: first, a potential loophole in proposed amendments to the ephemeral recording exception; and second, recent requests by broadcasters for a major policy change on the ephemeral reproduction right.

In both cases, the end result would be contrary to the government's stated intention to provide a 30-day temporary exemption and could effectively annul the copying right.

Let me give you some background. For decades, radio stations played vinyl records and then CDs. Today, using digital technology, music is copied directly to hard drives. Radio stations have gained significant cost savings and higher profits thanks to the automation and operating efficiencies made possible by the right to make reproductions of sound recordings.

The point is that these rights have economic value. This is why broadcasters are required under the Copyright Act to compensate rights holders. It is also the basis for Copyright Board decisions in 2003 and then again in 2010. The board is an impartial, independent agency created by Parliament, which exhaustively considered expert testimony and the arguments of all stakeholders. It determined the fair and appropriate compensation to rights holders for the efficiencies broadcasters gain from utilizing the reproduction right.

No one during those hearings disputed that copies made by broadcasters have value.

The Copyright Board, in its 2003 decision, found that:

Copying music to a hard drive optimizes the use of these new [broadcasting] techniques, thus entitling rights holders to a fair share of the efficiencies arising from this reproduction.

The 2010 decision found that using the reproduction right “allow[s] stations to increase their efficiency and profitability”.

Commercial radio in Canada has grown steadily and significantly more profitable in the past decade, reflecting, in good part, the increasing importance of the reproduction right to broadcasters. Let's keep in mind that we're talking about the key business input used by commercial radio: music.

Music, more than anything else, is what radio business is all about. Over 80% of commercial radio programming is music. The Copyright Board has confirmed that reproduction rights are distinct from other rights associated with broadcasters' use of music, namely, the right to play the music.

These are separate rights that are separately owned by composers, performers, and record labels, and apply to separate and distinct activities. No one has been asked to pay twice, as the broadcasters argue. The foundation of copyright law is that the owner of a right be compensated by those who use the right.

Last week you heard testimony about the so-called layering of rights. The Copyright Board heard this argument and rejected it.

In its 2010 decision, the Copyright Board considered all commercial radio tariffs in a single, consolidated hearing at the broadcasters' request. They determined what broadcasters must pay for different uses of music and the rights connected to those uses. It found that the effective payment for all uses—equal to 5.7% of revenues—is fair, equitable, and well within their means. Within this total amount, the board set the rates under each tariff.

In Bill C-11, the government has proposed a 30-day exemption to the ephemeral recording exception. In short, Bill C-11 says that broadcasters should not have to pay for temporary copies of music. While the proposed 30-day exemption was unwelcome news to our members, we respect the government's right to set the policy.

Last year, at the Bill C-32 committee hearings, the broadcasters supported the 30-day exemption. The representative of the Business Coalition for Balanced Copyright, appearing on behalf of the Canadian Association of Broadcasters said, and I quote:

On the question of the ephemeral exception and the ability of radio stations to make copies, as the provisions now stand, the lifespan of those copies is 30 days. If radio stations want to make persistent copies of music to use as part of their operations, they can't now rely on the exception to do it.... This is simply short-term copying.

What we are most concerned about today is that the broadcasters appear to have much more in mind than a 30-day exemption. Last week you heard testimony that pointed to a potential loophole. Broadcasters apparently believe that Bill C-11, as drafted, allows radio stations to circumvent the proposed 30-day exemption by copying their music catalogue from one server to another every 30 days. Temporary copies will become permanent.

The original intent of the amendment is summarized on the Industry Canada website, and I quote:

With the adoption of new technologies, broadcasters today make temporary copies of the music they play on the air.... Recognizing the temporary and specific nature of these copies, the Bill removes the requirement to pay for any copies retained for less than 30 days.

Now some broadcasters are going even further. They want to change the original intent so that the legislation removes the requirement to pay for any copies at all. The government has specifically stated that only technical changes will be made at this stage. Broadcasters are asking for a full-scale policy change that is a complete departure from the government's stated intent.

Temporary does not mean permanent. This applies equally to broadcasters' latest request for a policy change and to the potential loophole in the bill as currently worded. Both could have the same result—making the temporary permanent.

All stakeholders should be concerned that, as drafted, this bill will create legal uncertainty. To avoid this outcome, and to support the government's stated policy intention of a temporary exemption, the potential loophole must be closed. To that end, we propose a straightforward technical amendment that will align the provision with the government's intent. We will submit our proposal to the clerk. We must get this right. Please ensure that 30 days means 30 days and that temporary does not mean permanent.

We think the Government of Canada got its priorities right when it said in the very first line of Bill C-11:

the Copyright Act is an important marketplace framework law and cultural policy instrument that, through clear, predictable and fair rules, supports creativity and innovation

We understand that this is a complex issue. We support the government in its effort to modernize the regulatory framework. We applaud the government's objectives to provide “clear, predictable and fair rules”. We believe our proposed amendment strengthens the legislation's ability to meet Bill C-11's stated objectives.

Thank you.

[Jay Kerr-Wilson]

I would say that even small creators need the opportunity to reach their market. Certainly the Internet, as Google testified, gives unprecedented ability for the small creators to reach and find their audiences and to sell. We need to have the tools in place that promote legitimate markets and restrict infringing behaviour. I think this committee and the Bill C-32 committee heard lots of testimony that notice and notice does provide a significant deterrent to infringing behaviour and will give the tools for the legitimate market.

Therefore, you drive people away from the infringing behaviour and towards legitimate services and legitimate service providers. The small creator has unprecedented ability to now access that marketplace, to find their audience, to find their consumers, and to engage in very small transactions that will be profitable.

[John Fisher]

First of all, I have to say that we were surprised, because we're in touch with the education community on a daily basis in our business, and in their testimony before this committee and on Bill C-32 they said they didn't want not to pay.

When we met with the representatives of the two departments, Industry and Heritage, they could not provide us with an explanation as to why that provision had been inserted. Also, no economic study has been done to determine what the consequences and the outcome would be if that provision were included.

So we're mystified as to why it's there. We think it serves no one's purpose whatsoever.

[Suzanne Hitchon, President and General Manager, Head Office, Criterion Pictures]

Good afternoon. Thank you, Mr. Chair and committee members, for allowing us to appear today and to speak to you on behalf of both our company and our industry.

My name is Suzanne Hitchon, and I'm here with John Fisher. Together we are representing Criterion Pictures, a division of Visual Education Centre, one of the largest distributors of audiovisual materials in Canada. Our company focuses on the distribution of curriculum-based materials for in-classroom educational purposes. We have been in business since the 1960s.

Our industry provides a vast array of audiovisual content that covers all grade levels and all subject matters in both of Canada's official languages. We are here today on behalf of an entire industry that may very well cease to exist should Bill C-11 pass into law.

We operate independently of government subsidies, and our industry as a whole employs more than 8,000 Canadians.

For more than 50 years, our industry has been providing a highly valued service at fair market prices to educational institutions, while at the same time contributing $30 million to $50 million in annual revenue to the Canadian economy. Like many private industries and small businesses in Canada, we have certainly faced our fair share of challenges. We've had to adapt to change and take financial risks, adjusting to new technologies and budgetary constraints while at the same time meeting the needs of our customers as they have demanded increased services at lower prices. This is the reality of the private sector.

In recent years our company alone has invested millions of dollars of our own money to build a K-to-12 digital delivery platform comprising more than 25,000 audiovisual curriculum-based programs to meet the needs of our customers. Through all this change, we have survived and grown without government support or financial assistance. However, since the inception of this industry sector, nothing has posed a greater threat to its continued existence, to our very livelihood and our lifelong investment, than the passing of this new legislation in its current form. Should Bill C-11 pass in its current state, it will have catastrophic consequences for both our business and that of our industry.

As currently written, Bill C-11 will eliminate requirements for educational institutions to pay for copies of materials they currently license from us, representing a direct loss of millions of dollars in revenue and effectively putting us out of business. The current legislation places a new reverse onus on our industry to monitor more than 15,000 schools throughout Canada for violations—an impossible task. Additionally, it subsequently reduces penalties for damages and eliminates all requirements for record-keeping.

These new conditions in Bill C-11 will lead to an overall loss of jobs and investment and a decline of Canadian content, as most financial incentives for private investment are now removed. As a result, students and teachers will become more dependent on U.S.-produced cinemagraphic works, as Canadian product will be difficult to find.

The government will ultimately need to fill the gap by providing more taxpayer funding to organizations such as the National Film Board of Canada and/or the CBC, if it feels Canadian programs have any value.

The passing of Bill C-11 in its current form is of benefit to neither the non-theatrical industry like us nor the Canadian educational community. There is no winner. Educators are not asking to be exempt from the current copyright provisions, but that is what this bill prescribes. This was clearly outlined during the testimony of the Council of Ministers of Education during the previous Bill C-32 committee hearings, when the chair of the CMEC, the Minister of Education for Nova Scotia, stated and I quote:

We are not asking for anything for free. The education system, the sector, pays for licences and copyright, and will continue to do so. What we are asking for with these amendments is to have things clarified.

Ms. Rosalind Penfound, deputy minister of the CMEC, testified:

Our assessment is that each year across Canada there's likely more than a billion dollars spent by the education sector to pay creators for their books, movies, art, etc.... We would not anticipate that this bill would in any way reduce the amount of money the education sector would be putting into these efforts.

Finally, this is from Ms. Cynthia Andrew, from yesterday's testimony, from the Canadian School Boards Association:

...it has been suggested that the education community does not want to pay for education materials, and this is incorrect. Education institutions currently pay for content and for copying of these materials.... CSBA is not suggesting, nor have we ever proposed, that school boards should not pay for intellectual property.

That's the end of the quote.

[John Lawford]

I think I'll say the opposite and say that consumers are up against TPMs every day. They use their iTunes and they realize that they can't put it on more than five devices because that's what iTunes says they can do with it. They are very familiar with the fact that you can't copy a DVD without breaking a lock, that it's difficult, that you have to go and hunt for software to do so. So I think they are familiar with them.

How do we know whether that's the consumer position? Well, we work in this field every day. We saw the submissions that were made in the consultation between Bill C-61 and Bill C-32. The consumer comments in that, which came straight from the public, we thought were very much in line with the position we've taken today. We haven't had the money to do a survey of consumers on this. We're small organizations with limited budgets.

[Janice Seline]

Well, it's not as black and white as it looks. I think the act as it exists now has a huge section dealing with education and what education can and cannot do. It's well understood. Bill C-11 tries to add to that and clarify some things. Some of them I don't agree with, but some I do.

The fair-dealing exception simply muddies the waters. It creates a whole lot of questions. There are institutions such as museums that under the present act are not classified as educational. There's a good definition of what an educational institution is in the act. Museums do not fall into that. On the other hand, they engage in public education.

We've heard them say, in the Bill C-32 hearings, that they can't wait to declare themselves as educators under fair use—which will open up a whole lot of litigation, as far as we're concerned. If we have to fight with them every time they claim fair use, it will cost us a fortune. It will take years. It's better to leave it out of fair use and in the act the way it is now and continue to deal with it the way you do.

There are, of course, millions of dollars paid to the reprographic rights organizations for the privilege of copying. Our organization benefits from that. Our members do. However, in Bill C-11, the part we have a little problem with is that you're declaring that the Internet is not an option for licensing. We think there would be creative ways to do that, and to simply say “Internet” is way too broad. That's all.

[John Lawford, Counsel, Canadian Consumer Initiative]

Mr. Chair, committee members, and Madam Clerk, my name is John Lawford, and with me is Janet Lo. We are counsel to the Public Interest Advocacy Centre, one of four major Canadian consumer groups who have banded together under the title of the Canadian Consumer Initiative, CCI. The other members of this coalition are the Consumers Council of Canada, Option consommateurs, and l'Union des consommateurs.

CCI wishes to bring to the committee our view of the consumer interest in copyright legislation. Consumers are one of three major stakeholder groups in this discussion, along with artists and rights holders. However, despite their huge importance, the voices of consumers have not been loud or clear in this debate.

Consumers buy copyrighted content. They enjoy copyrighted content. They directly and indirectly compensate artists and rights holders. They are an essential part of the equation in achieving a copyright law that fairly grows creative content and personal enjoyment of that content. You can't do it without consumers.

This bill makes strides towards recognizing this foundational role of consumers. We like the explicit recognition of consumer rights: of consumers' rights for all copyrighted content, clear backup rights, format-shifting rights, space- and time-shifting rights. We also applaud the efforts to recognize and validate user-generated content that is non-commercial, creative, and widespread among consumers. As written, that provision ensures non-commercial, non-threatening, non-destructive consumer creativity.

However, we have had to curb our enthusiasm for the expression of these consumer rights in the bill because of their potential override by digital locks or technical protection measures. We continue to believe that the power balance between rights holders and consumers has been tipped too far in favour of rights holders under this bill. Every consumer right under this bill can be taken away by a technical protection measure, and that can be done in two ways.

First, the general protection of technical protection measures in proposed section 41 prohibits consumers from backing up or time- or format-shifting content if a digital block is in place. Second, each of the individual consumer rights listed in proposed new sections 29.22 through 29.24 has a subsection that makes that right applicable only if the individual, ”in order to make the reproduction or record the program, did not circumvent...section 41”.

In effect, then, these sections declare that when a technical protection measure is present, none of the format-shifting, time-shifting, or backup rights even exist. This matters, because consumers will therefore never even be able to argue that they are exercising their consumer rights if they circumvent the technical protection measure. If this bill is passed as written, a consumer who breaks a digital lock for non-infringing purposes will be violating the Copyright Act. Although a consumer would not face statutory damages under the act for a circumvention done for private purposes, we are more concerned with the chilling effect of outlawing all tools that permit circumvention of TPMs, even when designed and used only to allow consumers to enjoy their consumer rights.

In short, no business or individual will write or distribute such software for fear of liability, and the vast majority of consumers will not be able to do this themselves. As a result, consumers will have their rights dictated to them by rights holders, who will likely use this power to deny these rights or to demand additional payments for content that can be backed up or time-, space-, or format-shifted.

Consumers will face a myriad of TPM restrictions on devices, media, and delivery mechanisms that are very likely to make some of the content they have bought unplayable and almost certainly will make that content vastly less secure and less usable. The market will not solve this dilemma. The commercial interests of artists and rights holders go the other way.

The Bill C-32 committee heard Ms. Milman come and explain that she would like to be paid twice, once when a consumer buys her CD and once when they put it on their iPod. The same committee heard Ms. Parr of the Entertainment Software Association of Canada claim that new business models with TPMs would create more choice for consumers, lower prices, and give more flexibility.

Consumers don't think so. They believe and act as the format-shifting, time- and space-shifting, and backing-up normal people that they are. They feel that they have done the right thing by buying content, paying for it once, and using it normally. They have a right to this expectation. It is for the industry to structure itself to be profitable in this environment and for that industry to fairly compensate artists, not for this Parliament to hand an act to rights holders and artists that protects top-heavy, unfair business models and is contrary to the public interest.

At a minimum, this bill should be amended to recognize these consumer expectations and actual use of copyrighted content in the real world. Therefore, we recommend that the committee consider striking out the language I quoted in each of the proposed new sections 29.22 through 29.24, and those are 29.22(1)(c), 29.23(1)(b), and 29.24(1)(c). These TPM restrictions expressed right in the text of the supposed consumer rights are at the very least redundant, and at the most a contradiction of the consumer rights that are supposedly granted in these sections.

As for the larger technical protection measures in proposed new section 41 and what that means for consumers and other public uses of copyrighted content, CCI understands the Canadian Library Association has written a proposed amendment to the committee of the definition of “circumvent” that will “ensure Canadians' ability to invoke their full rights as information users by allowing them to bypass digital locks for non-infringing purposes”. We support that amendment.

With regard to a positive in the bill, we welcome the amendments to the fair-dealing right, including specific listing of education, parody, and satire. However, again CCI is disappointed that the acknowledgement of rights like this that promote the public interest can be limited by digital locks.

Finally, CCI has a specific amendment to suggest to the committee. I have provided it to the clerk in both languages, and I do hope you have a copy before you.

We were very pleased that the bill creates a category of non-commercial infringement for statutory damages that is limited to $5,000 for all violations. This gives consumers some measure of comfort that they will not face unreasonable and unrealistic demands from copyright-based business models of suing consumers who do not profit from infringement.

However, the proposed new section 38.1 as written in the bill still allows suing consumers as a business model. This section gives rights holders an election to sue for actual damages or statutory damages. Although non-commercial statutory damages are capped at $5,000, the rights holder may threaten very large actual damages in the hope that a consumer faced with a lawsuit settlement letter will pay up. The amount demanded could be far in excess of the $5,000 for non-commercial infringement, even if the likelihood of the rights holder proving actual damages in this amount would be practically zero.

The key phrase is “may elect, at any time before final judgment”. This allows the rights holder or agent to threaten to proceed under actual damages and to send that settlement letter right up until final judgment. This power must be removed from rights holders. It has been abused in the United States under the Digital Millennium Copyright Act.

In Canada, we have several Hurt Locker cases against individual consumers waiting in the bullpen for this act to pass. The solution is to require rights holders to elect at the outset of proceedings under the Copyright Act whether to prove actual damages or rely upon statutory damages when alleging non-commercial infringement.

Our amendment will help to ensure what we believe was the original intent of the bill: to guide rights holders toward the capped statutory damages for most non-commercial consumer infringements.

We thank the committee for its attention, and we're prepared to answer your questions.

Thank you.

[Aline Côté]

The three-step test is really important because it defines what it's going to be.

That is going to define the main criteria.

I would like to say a couple of things about everything we have heard so far. We are seeing all kinds of practices that show that the impact of Bill C-11 and its predecessor, Bill C-32, is already being felt. For example, 35 universities have opted out of collective management. Two of them have gone back because they realized that rights management is quite a big deal.

There is also a drop in educational material purchases. With tablets, whiteboards, and so on, there is an upward trend toward buying one set of materials for the whole class. We realize that the Supreme Court also meant that fair dealing will be defined by current practices.

Over the past 15 years, digital practices have gone in all directions. We are talking about 15 years without any specific legislation for that. Even thinkers—one of them was here yesterday but maybe he did not talk about this—encourage you to hurry up and interpret fair dealing as widely as possible, as defined by the criteria in the CCH Canadian Limited decision. This way, when there is a dispute, it will be possible to rule in favour of current practices.

People call us fear-mongers, but we are already seeing things. Not only will this make us lose money and reduce our capacity to develop new materials, but the neutrality of the bill allows for format shifting. As a result, anyone can create something in any format, and shift from one platform to another, go from paper to digital or vice versa, and so on. This feature of the legislation results in a huge loss of control. And the loss of control, with everything that will be available, will make things more complicated.

For example, in many classes, they use digital tablets or iPads. That is very appealing, but then you also have access to YouTube. In light of everything that can be reorganized, posted on the Internet and reused in the classroom, we think that this will have an impact on our ability to keep track of the identification of works. Which one is the original work? Is the work I will be using truncated or tampered with?

[Marc Workman]

I would say so. I looked at the submission of the CNIB on Bill C-32, which you guys will have access to I'm sure. They raised some of the same issues about TPMs and maintaining a staff with that expertise, the ability to remove digital locks, and the concern with not unduly impairing the technological protection measure. So I think they have some of the same concerns.

[James Gannon]

Absolutely, there is a right medium, which is why I urge the committee to really try to come up with that right language. An example of why this enabling clause is kind of weak is that last year, at the Bill C-32 committee, even the ISPs—these guys who would be sheltered under the safe harbour—came out and said, “You know that enabling clause? You might want to kind of beef it up a little.” They are not the kind of people you'd think would be promoting that kind of amendment, but even they identified that as a necessary change.

When it comes to the safe harbours, there are some amendments you could make that wouldn't cover any of those traditional good guys, like the ISPs or the search engines, but would help in making the bad guys not sheltered under the provisions—specific things, such as if you know about an infringement, do something. If you are a hosting website and I point out that there's some infringement content, do something about it—I don't think any legitimate website would be opposed to that kind of requirement, that you take some action against infringing content once you know about it. That kind of requirement, which we have seen in similar legislation elsewhere in the world, is not found in the current safe harbours.

[James Gannon]

Absolutely. Thanks, Mr. Chair.

Last year, the Legislative Committee on Bill C-32 heard from a number of witnesses about how young people produce and use digital media. It was also said that, because of these new uses, the Copyright Act was in urgent need of reform. And yet, the committee did not hear from many young Canadians. Therefore, I also hope to share with you the point of view of a young Canadian, at the dawn of this new Parliament.

Let's get started with TPMs.

TPMs are technologies designed to control the way that digital media can be accessed and copied. Bill C-11 would make it an infringement of copyright to circumvent the TPM or to manufacture and distribute the circumvention devices. Legal protection for TPMs, or technological protection measures, has been enacted by all of Canada's major trading partners pursuant to the WIPO Internet treaties.

We often hear these technologies being referred to as “digital locks”, but I think that's a total misnomer; we should not think of TPMs as restrictions somehow meant to frustrate consumers but as an essential element of a thriving digital media marketplace. If there's one thing I'd like to accomplish in front of the committee today, it's to get rid of that “digital locks” label and to turn the focus back on what these technologies are and how Canadian copyright should protect them so that we can sustain a vibrant Canadian creative marketplace.

I'll give you a couple of examples.

I wouldn't call the TPM that's used on the Spotify music service a digital lock, because if you subscribe to the Spotify service, you can connect to and stream music from Spotify in unlimited amounts. You have access to a massive catalogue of music that you can stream at any time. What that TPM will do is prevent you from copying that stream and making your own local copy on your own hard drive. Otherwise, the only thing you'd need to do is subscribe to Spotify for a month, copy every piece of music they are offering, and cancel your subscription. The TPM stops you from doing that, but it doesn't stop you from having access to that stream at any time.

Even online video distribution services are using TPMs in very beneficial ways. For instance, through Blockbuster online you can either rent or buy movies from the Blockbuster website. There are not a lot of stores left in real life, but they have an online business now. If you rent a movie through Blockbuster, you get that movie file; it will cost you $3, but you get a TPM on that movie, and it causes the file to erase itself after 30 days. If you buy that same movie, it will cost you a bit more, maybe $20, but that file will not delete itself. Really, it's the TPM that makes that rental distribution model happen: without the TPM, there would be no difference between the rental and the purchase model.

We often hear that these cultural industries need to find new business models for their products; I think they're already here, but they rely on TPMs to make those distribution models sustainable.

That is why it is so important that we catch up to the rest of the world and ratify these WIPO treaties.

Bill C-11 would also create new exceptions that would give consumers greater flexibility in how they could use the media they had legally acquired, new exceptions for things such as format shifting, time shifting, and making backup copies. These are all long overdue additions to Canadian copyright law, but they should only apply so long as the TPM is not circumvented in order to make those new copies.

I understand that some have proposed to remove that condition and to allow the circumvention, or hacking, of TPMs in order to make those backup copies and those format-shifted copies, but allowing that hacking makes sense only if we go back to that digital locks mentality and do not think of these technologies as enablers of those distribution models I was talking about.

I'll give you some examples again. If I can circumvent that Spotify TPM, the thing that's protecting that stream, in order to make my own backup copies, again, I can just copy the entire Spotify music library legally under Bill C-11 and have my own local copy of the whole library they're offering as a subscription model.

Again, if I'm allowed to legally back up that Blockbuster rental, there's no reason I'd ever need to buy a movie. I could just rent movies and make as many backup copies as I wanted. That's why the TPM requirement in these new exceptions is absolutely vital: to ensure the viability of those new business models.

I want to say a couple of things about the enablement clause that I don't think have been raised today. There have been a lot of reports lately about what this clause is, so it's another concept I'm hoping I can clarify right now.

When the the Honourable Tony Clement introduced Bill C-32 a couple of years ago, he talked a lot about going after the bad actors or the wealth destroyers in the copyright world. Those were programs such as Napster and LimeWire, back in the day. Nowadays we have websites such as isoHunt and The Pirate Bay. These are the guys this enablement clause really targets.

On the other end of the spectrum, Bill C-11 also has safe harbours that are meant to protect the good guys. These are ISPs such as Rogers and Bell, or search engines, or hosting sites like YouTube. We know that these good-guy services are sometimes used to transmit infringing content, but it's not their primary purpose. That's why Bill C-11 gives them a safe harbour and protects them from liability.

You really have to think of it as a spectrum. Bill C-11 has the enablement clause to go after the bad guys and then safe harbours to protect the good guys.

However, the problem I want to bring to your attention today is that the bill won't really give enough teeth to copyright holders to go after these bad guys. On the one hand, the enablement clause is narrowly worded, so there's a chance that bad guys such as isoHunt and The Pirate Bay could argue their way out of it in court. On the other end of the spectrum, those safe harbours are very broadly worded. Not only could those bad actors argue their way out of the enablement clause, but they might actually be able to be sheltered under those safe harbours. That would be an unforeseen negative consequence of drafting the bill in its present form.

I can't stress enough the importance of getting the right language when it comes to the enablement clause and to the wording of those safe harbour provisions. It would be much too technical for me to get into all the little tweaks that might be needed today, but I'll give you an example.

The enablement clause right now applies to websites that are primarily designed to enable copyright infringement. That's the current language. However, every time we've seen these websites face lawsuits in other countries, their first argument was always, “Sure, 99% of the people who go to my website are downloading illegal content, and sure, I've made millions of dollars from all the infringement, but it was never my primary purpose. It was never what I primarily designed my website to do. It just so happens to be what it's used for nowadays.” That's why I propose to change the language of the enablement clause to say that websites primarily designed or operated to enable infringement should be liable for the massive amount of infringement that those bad actors are causing.

I urge the committee to look at these and some of the other proposed amendments that have been made to the enablement clause and those safe harbour provisions.

The last thing I'd like to quickly mention are certain technical amendments that are needed to some of the software-specific parts of the bill. These are provisions related to things such as encryption research, network security, reverse engineering, and software interoperability.

Last year at the Bill C-32 committee, witnesses such as the Honourable John Manley and the Honourable Perrin Beatty talked a bit about some of these amendments. I can confirm, both as a systems engineer and as a copyright lawyer, that these amendments are indeed required to those software-specific provisions. I haven't heard a whole lot of opposition to them, so I think they're fairly non-contentious. I'd urge the committee to consider those as well.

I think my time is up. So I would be happy to answer any questions you have on the bill.

[Professor Samuel Trosow, Associate Professor, University of Western Ontario, Faculty of Law and Faculty of Information and Media Studies, As an Individual]

Good afternoon. I want to begin by thanking the committee for inviting me as a witness. My name is Samuel Trosow. I'm a professor at the University of Western Ontario. I teach in the faculty of law, and I also teach in the faculty of information and media studies, which houses the journalism program, the media studies program, and the library and information science program.

Copyright policy is the main focus of my research, particularly as it pertains to new technologies. I'm going to focus my comments today on the aspects of Bill C-11 that most directly affect teaching, learning, and research in our educational communities. Bill C-11 is not a perfect piece of legislation, but I want to focus on something in it that I believe the government got very right, and that is the fair dealing provisions.

Fair dealing is the right to copy works without permission or payment, but only when it is fair to do so. Fair dealing is recognized by the Supreme Court of Canada as an integral part of the Copyright Act and a critically important right for all Canadians. The challenge for copyright policy has been to find the balance between often disparate stakeholders in order to promote learning and progress, to compensate creators, and to encourage new works. To do this, copyright creates a limited monopoly in the sense that owners are given very powerful, exclusive rights over their works, but the monopoly is limited in terms of its length and by users' rights, such as fair dealing.

What you must do is ensure that copyright policies enable new forms of learning and creativity and at the same time ensure that creators of intellectual goods have reasonable levels of protection in the digital environment. This is where the importance of fair dealing really comes into play. There are times when, whatever particular hat we are wearing, we need to access and use information resources. The Copyright Act currently permits fair dealing for the purposes of research, private study, criticism, review, and news reporting.

In the 2004 Supreme Court of Canada decision, CCH Canadian Ltd. v. Law Society of Upper Canada, fair dealing was identified as an important users' right, one that's integral to the overall balance sought in the Copyright Act. This interpretation is consistent with changing practices and quite appropriate in a technology-intensive information environment. But in the context of educational institutions, there remains a degree of uncertainty about the scope of fair dealing, the current language for which was essentially adopted from the 1911 version of the Copyright Act of the U.K. when the Canadian act was passed in 1921.

In the lead-up to Bill C-11's predecessor, the educational community was unanimous that the fair dealing categories needed to be clarified. The suggestion was to add the words “such as” before research, private study, criticism, review, and news reporting, and then to state the six fairness criteria adopted in the CCH decision. Bill C-11 does not go the “such as” route. Instead, it adds three specific things to the list: education, parody, and satire. While I would have preferred the inclusion of “such as”, the current proposal is a very reasonable compromise.

This provision has become a lightning rod for opposition and has given rise to several claims that an expanded fair dealing is all about saving money and that it will result in widespread copying of texts that will disable Canadian publishers and creators. One of the persistent charges being levelled by the opponents of fair dealing is that the educational sector does not want to fairly compensate creators, that schools and teachers and students want to expand fair dealing in order to save money, but nothing could be further from the truth.

Your predecessor committee on Bill C-32 heard from several groups about the massive spending the educational sector devotes to purchasing and licensing resource materials. Ernie Ingles, the University of Alberta chief librarian, told the committee last February that Canadian university libraries spend over $300 million annually on the purchase or licensing of content and that this will not change as a result of changes to fair dealing. The same point that day was made by Campus Stores Canada, which said that fair dealing does not affect the sale of course packs or the sale of text books, and they too saw no reason why this would change. The bookstores supported adding education to fair dealing as an important academic right, and they thought the concerns about mass copying were simply not founded.

Adding education to fair dealing is not about saving money, but the money will be spent in a smarter way and in a manner that will leverage these expenditures to make the content more accessible to more people, nor will the inclusion of fair dealing destroy the Canadian publishing industry and the creators who depend on it. In the United States the corresponding right to fair use for educational purposes is considerably broader than what Bill C-11 proposes. Despite these more liberal terms, well beyond what's being proposed in this bill, there is a thriving and robust publishing industry there.

In terms of suggestions for moving forward, if the committee wishes to clarify and limit educational fair dealing, there is a simple way to do that: include the six factors laid out by the Supreme Court of Canada in CCH into the text of the act. These factors for assessing the fairness of dealing are the purpose, the character, and the amount of the dealing, the alternatives to the dealing, the nature of the work, and the effect of the dealing on the work.

If you think educational fair dealing needs to be further clarified and defined, then by all means put this language into the act.

There is a final concern I want to mention. It's been suggested that educational fair dealing be limited to qualifying educational institutions. I would reject this approach. It would be the wrong thing to do. Fair dealing is a right for all Canadians, not just those privileged to be in an educational institution—a defined and limited term in the act. Fair dealing is not just for a graduate seminar on quantum physics. It's for a hockey coach teaching power skating skills. It's for a seniors centre running programs on nutrition and fitness. It's for a Girl Guides troop learning about the natural environment. It's for an exhibit on local history in a local museum. It's for a literacy program at the public library. It's for anyone engaged in the growing area of lifelong learning.

Yes, the clarification of fair dealing is critical for those working or studying in educational institutions, and there are additional exceptions that apply only there, but fair dealing is an important right for all Canadians from all walks of life, including authors, artists, and musicians, working inside and outside of our schools, colleges, and universities. By listing education within fair dealing's purposes, Bill C-11 strengthens and clarifies the right to the benefit of everyone, despite some of the sensational claims you've been hearing.

This change is of central importance because all of the goals articulated in the government's consultation—innovation, creativity, investment, competition, and global leadership—are best met by turning Canada into a haven for the practice of fair copyright. Canadians in all walks of life should be encouraged to engage in fair copyright practices. Practising fair copyright, which may take on different forms in different contexts, should become the hallmark of a Canadian copyright culture that reflects Canadian values.

As you proceed forward with this legislation, I urge you to pass the proposed fair dealing provision.

Thank you again for your time, and I would be pleased to answer any questions during your question period or subsequently in writing.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Just to clarify, there were over 70 witnesses on Bill C-32, and we will hear from another 60.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

Listen, I was quite shocked to hear Mr. Lake say we had heard from 130 witnesses. He also said that the bill currently before us was the same bill. We invited 130 witnesses to discuss Bill C-32, and here we are today....

[Dean Del Mastro, Conservative, Peterborough, ON]

I'd be fine with that amendment if you wanted to move it, but I'd also be very happy to bring to this debate some background on how this bill was put together, just to remind members of the committee of how it was done. I had the opportunity to meet with Mr. Benskin, I believe in the last Parliament, on this and other matters, and I recognize that he's been on this file for some time.

This bill was put together as a result of the broadest consultation on any government bill that I'm aware of. We entertained submissions from groups, including electronic submissions. In excess of 8,000 submissions came in written form, but we also had meetings in cities right across this country.

We admit the bill is not a perfect copyright bill. There is no perfect copyright bill, because you cannot satisfy every group that has an interest in copyright. You cannot give every group everything it wants. If you do that, you do it at the expense of another group that also has an interest in copyright. That's why the bill seeks balance, and balance means compromise, and compromise isn't perfect. That is what the bill is about.

For members who suggest that we are trying to force this through—some have used derogatory terms that I won't repeat—I suggest that they review the history of recent Parliaments. To the best of my knowledge, the 38th Parliament brought a bill, Bill C-60, that did not go anywhere. The 39th Parliament, to which I was elected for the first time, brought Bill C-61. It did not get passed. The last Parliament brought Bill C-32. It did not get passed either. I think it is incumbent on this Parliament to approach this bill with the sense of urgency that people in this country feel with respect to protection of property rights.

I have met with interest groups from right across the spectrum. Every single one of them knows, and they have known for a very long time, that a new copyright bill was going to be passed and needed to be passed. They support Parliament in acting on it, and that's why I think it's entirely appropriate that this committee approach this issue with the urgency it deserves.

For some 15 years, this country has had its name signed to an international treaty that we have simply not fulfilled, and I think that's unacceptable. I heard another member mention that funds could be wiped out if this bill was passed. I'd suggest that perhaps the member might start his review of the evidence submitted in the last Parliament by looking at evidence provided by the film industry. It showed that more than $1 billion a year is not coming to this country; it is being lost in investment, including in places like Montreal, which has a strong film industry, where we are not attracting that billion dollars. That's thousands of jobs.

Consider the recording industry. We heard from Music Canada, which talked about over $800 million a year going missing. That's coming right out of the pockets of artists, and that's money that's not being invested in this country.

The entertainment software industry talked about thousands and thousands of jobs that are not here right now in places like Montreal and Vancouver, all because we do not have a system that protects the property rights of companies that would otherwise invest in the industry and in the people who own the intellectual property.

For this committee to not approach this bill with the urgency that this situation calls for would be negligent, and it's not something the members on this side of the table are going to support.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

In reading the bill, it becomes clear that a number of statements made by witnesses before the committee charged with studying Bill C-32 were not taken into account. As soon as this bill is passed, rights holders will lose $126 million. Certain messages did not get through, and I think the Conservatives would do well to hear them again.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much, Mr. Chairman.

I'm going to vote against the amendment, because having sat in on the previous meetings on Bill C-32, I can say that the evidence is still, in my view, very relevant. It is recent, and frankly, it's evidence provided on this exact bill, so there's no reason we need to hear from witnesses a second time around on this bill. There's an old saying that nothing is new under the sun, and nothing has changed since they provided this testimony.

There are those who will disagree with the bill and there are those who are patiently awaiting this Parliament, this government, and each and every one of us to adhere to the obligations that we committed to under a previous government in 1997 to ratify the WIPO Copyright Treaty.

We can either stay true to our word, ratify those obligations and move forward, or we can continue to delay and frustrate those who are counting on us to act responsibly. I would be entirely opposed to hearing witnesses a second time. I think it's entirely appropriate to allow them, if they've had subsequent thoughts, to be able to submit those to the committee for its consideration, but this is the same bill and their testimony is recent.

Next week is a break week. I would encourage any members of this committee who did not sit on the Bill C-32 committee to use that time as an opportunity to review the materials we received and to acquaint themselves with that information.

Thank you.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I just want to get some clarification. Could the clerk remind us, going back to Bill C-32, how many meetings we had on Bill C-32? How many witnesses appeared before C-32? Could you remind us what the timeframe was in studying Bill C-32?

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Actually, before I read that, why don't I just quickly read the one before it so everybody is clear on that? There was some crossover there. The one that we passed before was “that the evidence and documentation received by the legislative committee on Bill C-32, An Act to amend the Copyright Act, during the third session of the 40th Parliament be taken into consideration by this committee”. That covers what we are going to take into consideration.

This new one is “that for clarity, witnesses who appeared before or made submissions to the special legislative committee on Bill C-32 during the third session of the 40th Parliament may provide, in written form to the committee, addenda to their original submissions”.

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

It's very important that we bring forward all the evidence that was heard at Bill C-32 so that people did not put their in their time in vain, but I'm concerned about whether that precludes some organizations--I'm not sure it's all of them--that may want to provide testimony or briefs now under Bill C-11 from doing so. Just because we've received past testimony, does that preclude present testimony in present briefs?

We're speaking in this motion about taking all the evidence from the last time and bringing it forward, but is it going to preclude them from giving us new evidence?

[Geoff Regan, Liberal, Halifax West, NS]

Chair, I move that the motion be amended by adding after the word “submissions” the following: “and that all briefs and amendments submitted during the committee study of Bill C-32 be taken into consideration.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I move that for clarity, witnesses who appeared before or made submissions to the legislative committee on Bill C-32 during the third session of the 40th Parliament may provide, in written form to the committee, addenda to their original submissions.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

For clarity, I move that witnesses who appeared before or made submissions to the legislative committee on Bill C-32 during the third session of the 40th Parliament may provide, in written form to the committee, addenda to their original submissions.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I move that the evidence and documentation received by the legislative committee on Bill C-32, An Act to amend the Copyright Act, during the third session of the 40th Parliament be taken into consideration by this committee.

Copyright Modernization Act

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, I am very pleased to rise again to debate on the bill. I would hope that once the bill gets to committee, it would become a little more like what Canadians are looking for. At the present time, it is not.

The hon. member who spoke before stated that the bill, in its incarnation as Bill C-32, was the subject of wide splits then. However, that same bill was re-introduced as Bill C-11 with no changes. I am surprised that the Conservatives feel that people should be accepting the bill in this incarnation.

One of the many issues is the right of the artist. Copyright was something that was created to protect the interests of the artists, the owners and creators of works. However, the bill seems set toward usurping that right and creating a right for users. This does not happen in any other industry. If one builds a car, there are no laws legislating how much one can charge for that car. The pricing is market driven.

Independent artists are independent workers. They create work and the value of the work is based on merit. The use of that work should be controlled by the artist and not by industry or users. Users should have access to that work under certain conditions, but free access is something that neither helps the industry nor the artists.

If an artist cannot make a living doing their work and have no income, they basically have to go to the double arches to flip hamburgers to make a living. How can they create and work if their time is split that way? If there is no artistic work to be used as a result, then the users lose because they have nothing to benefit from.

First and foremost, I will cover the issue of remuneration, which is lost under this bill, as the private copy levy will be virtually phased out with the changeover of technologies. Remuneration of upwards of $30 million now goes to individual artists. This money is extremely important for an artist, because it is the difference between their making enough money to do their work in their craft and having to split their time between flipping hamburgers or working in a restaurant.

Over the last few years, in music particularly, we have seen Canadian artists rocket to the top of the world music industry. This is because they have had the time to polish their craft and create as opposed to doing odd jobs in order to earn a living. This has allowed artists to live like normal people, to have families, and to contribute to the tax rolls and, more importantly, contribute to the beauty and identity of Canada.

The bill would take that away and offers no compensation or re-compensation for the use of artists' work. Again, and I will repeat this many times, the bill first and foremost does not respect the rights of artists

Earlier in the House the members opposite stated that the bill was supported by producers and associations. One artist was named in that list. In a democracy that is fine, but I can tell the House that tens of thousands of artists have come to me and my colleagues to say that the bill will not work for them. If we are continuing debate on the bill, it is because of the lack of movement on the government side to hear what these artists are saying and the other stakeholders who have issues with the bill.

There is no time limit to debate. If a bill does not work, we should debate it until it does work, until it finds consensus. Otherwise, all it would be is one side's thoughts and everyone would have to live with them.

This is what artists are fighting. This is what other organizations, arts organizations, theatre companies, film companies, actors, musicians, all the people who have a vested interest in this copyright law are fighting. The government needs to listen to them.

I will hold the minister to his word that he wants to see amendments that make this bill better come out of the committee.

In terms of the type of people this bill affects, as in rights holders, it does not cover re-use laws. For example, when a visual artist creates a work, a sculpture or a painting, and that work is sold for $1,000, and then within a period of time the physical owner of that work sells it for $10,000, none of that $10,000 is seen by the artist. It moves on in time, and as the fame or the talent of the artist grows, the work grows in value. The artist who created that work does not see the profits from that work. This is something the bill needs to address.

It is the same thing with photography. When a photographer takes a picture, who owns that picture? If a photographer takes a picture at a family outing, a wedding or whatever, who owns the rights to that picture? If the couple wants to make copies to send to family members, which is a wonderful thing and something they need to do, that photograph is being copied and the creator is not being remunerated for that.

Centuries have gone by where artists were looked upon as vagabonds and beggars and useless members of society. I, being an artist, have always taken offence to that, but hey, the world is what the world is.

Not so long ago copyright was created to prevent artists from having their work taken from them. Once upon a time an artist would create a work and he or she would be given $50 and the work would be the property of whoever bought it. None of that remuneration would ever come back to the artist. The original copyright laws were put into place to help stop that from happening.

Today there are blues artists who have contributed to the growth of music in the world but who will die destitute because they have no claim to the work they created. This copyright bill needs to protect them. It needs to address that issue even further.

In terms of digital locks, why? Digital locks only serve the producers of the work, the shared copyright holders of the work, the industry, per se. Locking a piece of work only serves two things. It serves those whose sole interest is in finding a way around the lock, which seems to be a favourite pastime of many people. Finding a way around these digital locks gives them an opportunity to practise their craft, so to speak. What can be locked can be unlocked. How does this benefit artists? How does taking $30 million out of their pockets and putting a lock on their work benefit them?

The bill needs to be considered a good long time. It is something that has been needed for a long time to become compliant with the World Intellectual Property Organization, WIPO, and create devices against piracy.

However, the bill seems to leave more to punitive speculation after things are done as opposed to making sure that: one, artists are remunerated properly; two, people have reasonable access to that; and three, how we make a bill that serves everybody as opposed to one segment of society.

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

Mr. Speaker, I must admit that I am astounded by the hypocrisy of the question. We are debating Bill C-11. Currently, we have hours allocated for just that. There will be almost 75 speeches. Bill C-11 is exactly the same bill as Bill C-32.

I was on the special legislative committee in the last session of Parliament. On the government side, we wanted to sit day and night to get the bill passed. The opposition members, all of them, sat on their hands and twiddled their thumbs. They wanted to have nothing to do with moving the bill forward. Finally, we have the opportunity to move the bill forward to support innovation and creativity in this country. I look forward to getting that done.

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

Mr. Speaker, there is indeed a very long list of groups and stakeholders that support Bill C-11 and supported Bill C-32 in the last session of Parliament, including artists and creators.

I spoke in my comments about the entertainment software industry. Let me go on, as the hon. member wishes to hear the full list.

Our bill is supported by 400 film, television and interactive media companies across Canada; 150 chief executives across Canada; 38 multinational software companies; 300 Canadian businesses, associations and boards of trade; and 25 university student associations across Canada.

Let me quote a great Canadian musician Loreena McKennitt. She said that the changes proposed in the bill are “fair and reasonable” and that “By fair, I mean establishing rules that ensure artists...are paid for their work.... By reasonable, I mean rules that allow consumers to fully enjoy music...that people like me produce.”

I want Canadian artists--

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, the hon. member pointed out a list of people supporting the bill in its current form. Each time I have heard that list, the only people who have been drawn upon are from the video gaming industry.

As an artist for 30 years, I have known full well, from following the bill since its incarnation as Bill C-32, that the vast majority of the artistic community does not support the bill. Artists do not support the bill because it would take away their remuneration and rights. The bill would basically usurp the rights of the creators.

I would like the hon. member, if he would, to answer the question why or what proof he has that the majority of artists support the bill. In addition, I would hope that he would not think this is a delaying tactic, because a considerable number of Canadians do not support the bill. I think it is only right to debate it until we can find that balance and consensus.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Mr. Speaker, I am pleased to rise in my place for the second reading of Bill C-11, , the copyright modernization act, which would harmonize copyright law with current international standards and update marketplace framework laws to address new and emerging technological environments.

We need a common sense, balanced approach to copyright, one that is technologically neutral so that, as innovation continues to evolve, the Copyright Act would no longer be constrained by the way in which we respond to today's technological choices. The measure we introduce today in the bill must remain relevant to the technologies not only of today but the technologies of tomorrow.

The Copyright Act was changed in 1988 and then again in 1997. Many of the technologies we enjoy today were not invented by then and many of the students who I used to teach, who enjoy these devices today, were not even born the last time the Copyright Act was changed. The current act does not respond to the opportunities and challenges provided by Web 2.0 and social media. It does not answer the needs of the multi-billion dollar industries of today that were in their infancy the last time Parliament amended the Copyright Act. For these reasons, we need to modernize Canada's copyright laws and bring them in line with the demands of the digital age.

The Internet presents specific challenges to intellectual property. Each country approaches copyright and the Internet in a different way. As other countries have proceeded with copyright reform to bring their laws into line with the World Intellectual Property Organization's Internet treaties, we can see how important the rights and protections provided by these treaties can be.

In addressing copyright and the Internet, Canada has sought a real balance between the legitimate interests of the consumer and the creator while protecting the interests of the search engines and the Internet service providers. Bill C-11 would implement a notice and notice regime, which is a Canadian approach, supported by Canadian stakeholders, including the Internet service providers.

Under this bill, when an Internet service provider has received a notice from a copyright owner that a subscriber has been infringing upon copyright, the ISP would be required to forward a notice to that subscriber. Additionally, the ISP would be required to retain a record of this notification, including the identity of the alleged infringer. This record could be used if court proceedings were to follow at some time in the future.

I suggest that this made in Canada approach to copyright protection would be much more effective than the notice and take-down approach that has been put in place in the United States of America. Notice and notice is a Canadian innovation in intellectual property law. So, too, is the introduction of a new civil liability explicitly targeting those who wilfully and knowingly enable online piracy. Internet service providers and search engines would be treated as true intermediaries under these provisions. However, together with measures to protect copyright holders from piracy in the digital marketplace, this bill would also provide measures that would enable businesses to work with copyrighted materials in the pursuit of innovation.

Under the current law, an innovative company can run afoul of the copyright laws if it makes copies of another product in order to pursue encryption research, reverse engineering or testing for compatibility or security. The bill would remove these restrictions, enabling innovative companies to appropriately use copyright material to develop new products and services.

I believe that we have achieved a balance in this bill that would enable Canada to move ahead in the digital economy. It would foster innovation among companies and protect the search engines and the ISPs that have become such valuable players in the digital society. The bill would enable us to take our place among nations that have modernized their copyright laws. It would create an environment in which creators can create and consumers can enjoy the fruits of those creations for generations to come.

Canada is late in acting upon its goal to bring copyright practices in line with the digital age. A decade and a half has passed since we were at the table to help craft WIPO's Internet treaties. In the meantime, our trading partners have moved ahead with their own intellectual property regimes. However, although we may be late in modernizing our laws, students who were born the last time Parliament reformed the Internet practices and copyright are now in high school. It has been a long time since we have done this. The bill before us represents an innovative made in Canada approach to enforcing copyright on the Internet and would provide the flexibility that innovative companies require to continue the research and development of new products.

The time has come to put these measures into action. We were delayed in implementing these provisions when the previous Bill C-32 died on the order paper in the last Parliament. The months that have passed since have underscored not only the importance of copyright protection but the importance of getting the regime right.

I believe Canada has found the right balance, a balance that will serve as a model for others. We need to move quickly to pass this bill so that creators and consumers can both benefit, and for the clarity and protection that this bill would provide. I urge hon. members to join me in supporting it as we send it to committee.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Mr. Speaker, I am honoured to rise today to speak at second reading of the much awaited, much anticipated and much needed Bill C-11, the copyright modernization act.

Since this Parliament convened last autumn, the House has had a wide-ranging debate on this bill. In fact, the debate began even before this Parliament convened. Hon. members are aware that the provisions to modernize the Copyright Act and bring it in line with the demands of the digital age were introduced in the last Parliament as Bill C-32. That bill died on the order paper, unfortunately, but not before it had gone through second reading and had been discussed thoroughly at committee.

Now we are in a new Parliament and some of the old discussion has been renewed. We have scrutinized many of the provisions of the bill. We look forward to referring it to committee.

From listening to the debates, I have concluded that everyone on both sides of the House agrees on several important points. The first is that we definitely need to modernize Canada's copyright laws. This is long overdue.

Compared to our trading partners, Canada is late in updating our copyright laws for the digital age. Members on both sides of the House have referred to Canada's obligations as a member of the World Intellectual Property Organization. We are among over 80 countries that have signed the 1996 WIPO treaties, but we have not yet implemented them. As a result, Canada's copyright law has simply not kept pace. This bill would bring Canada in line with our G8 partners and most of the major economies of the OECD.

That brings me to a second point made from both sides of the House during this debate. It is often amazing how much commonality we can find if we look for it among members on all sides. The second point is that we would not update our copyright laws simply because we want to keep abreast of our trading partners. We would also do it to send a clear message to artists and creators that we value their creativity and innovation. We want them to live here, to work here, to invest here, to create here. We want their contributions to help make our Canada a great place to work, live and raise a family.

Another theme we have heard during this debate is the importance of finding the right balance when modernizing the Copyright Act for the digital age. Anyone who is aware of this subject knows that copyright law has to balance a great many interests. On the one hand, consumers have a definite interest in being able to use different platforms and media to enjoy the products they have purchased. They want to be able to use art and music to enhance their own creative efforts, for example, by adding soundtracks to their home videos. Also, educators and researchers want to use material available online in order to promote learning and to advance knowledge, noble goals.

These interests must, on the other hand, be balanced with those of creators and artists who depend upon the financial rewards of their innovation. Creators have to be rewarded. They have a right to be rewarded for their ideas and efforts.

We must also encourage and reward those working in related creative industries. Ideas do not just simply spring into life and get distributed across the country on their own. In related creative industries from music and film to publishing and video gaming, all those people who invest heavily in creative products need to be compensated for their risks. Such stakeholders have a right to be rewarded for their investment. They have a right to protect themselves from those who want to take what they have helped create but not pay for it. In fact, if they cannot protect themselves in this fashion, they will lose motivation.

There is the challenge: to achieve a balance between the ability of Canadians to access and enjoy new technologies and the rights of Canadian creators who contribute so much to our culture and economy.

On the one hand, the bill would equip businesses with the legal framework to protect their intellectual property. Companies could use digital locks as part of their business model and they would enjoy the protection of the law. However, at the same time the bill would legitimize the everyday activities of Canadians. It would make important exceptions for teachers and students to use new technologies to impart knowledge. The bill would encourage innovation and education by encouraging the use of leading-edge platforms and technologies by teachers and students across the country.

The bill would also provide fairness and balance in the penalties available to enforce the law. The current legislation does not discriminate between violations for commercial purposes and violations for personal use. The bill before us would create two categories of infringement to which statutory damages could apply: commercial and non-commercial.

Under the new bill, Canadians who are found in violation of the law for non-commercial purposes could be fined an amount ranging anywhere from only $100 up to $5,000.

On the other hand, the bill would give the courts sharp teeth when dealing with the infringement of copyright for commercial purposes. The courts then could impose fines up to $20,000 per infringement.

It is important that this message gets out across the country.

The bill before us seeks a careful balance between the interests of creators of copyrighted material and its consumers. Achieving this balance is not easy. Previous Parliaments have tried to find the right balance, but bills have died on the order paper instead.

We hope that this time will be different and we can move ahead with a bill that would be good for both creators and consumers. The bill benefits from the careful planning that went into Bill C-32. Hon. members will recall that before tabling that bill, the government consulted widely with individual Canadians, interest groups and associations. As a result, Bill C-11 before us benefits from the input and the advice of many different points of view.

Now, some hon. members may debate that the balance tips too far to one side. Others may debate that it should go in the other direction. The bill may not be perfect; however, it is very good. We must not let the perfect become the enemy of the good by preventing the bill from passing. I believe it has found the proper balance. I am looking forward to the bill proceeding to committee.

As I always do when I rise in this House, I urge hon. members to set aside their differences and to join me in meeting the common interests and aspirations of all Canadians. Let us get together and support the bill.

Second Reading

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank my hon. colleague for having provided some clarification, given his experience working with the legislative committee. Based on his experience, can he further explain the amendments he would have made to improve the bill, since we want to save time? Also, what were the major shortcomings the committee identified in Bill C-11 compared to Bill C-32?

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I am happy to see that the motion passed, as we now have the opportunity to have further debate. There has been significant debate already on this bill and I am pleased to have the opportunity to rise today to speak on the copyright modernization act.

This bill proposes amendments to the Copyright Act. As my colleagues know, our government made a firm commitment in the Speech from the Throne to introduce and seek swift passage of copyright legislation that balances the needs of creators and users. Our government is delivering on this commitment. We all know there has been significant debate on this issue. In the last Parliament, I had the opportunity to chair the special legislative committee on Bill C-32, the exact same bill now before the House as Bill C-11.

I am happy to see that our government has taken this commonsense approach to modernizing the copyright laws in Canada. We have crafted a bill that differentiates between positive activities and illicit activities in the digital environment. Furthermore, this bill would make Canada an attractive location for creators, innovators and investors. In short, it is a key element of our government's commitment to help create jobs and build the industries of the future.

Our government recognizes that Canada must keep in step as countries around the world respond to the new realities posed by rapid technological change. Every day there is something newer, something faster or better out there for creators and users. Determined new competitors are rising. We need to keep pace. Canada must be prepared to compete in this global economy. This bill is an important tool in accomplishing this.

A modern copyright framework would strengthen Canada's competitive position. The copyright modernization act would bring our copyright law in line with advances in technology and current international standards. It would give Canadian creators and innovators the tools they need to keep Canada competitive internationally. It would implement the rights and protections of the 1996 World Intellectual Property Organization's treaties, also known as the WIPO Internet treaties, which represent an international consensus on the standard of copyright protection.

I am sure that hon. members will recall that in the early 1990s, international discussions were initiated by WIPO member states on the type of copyright protection needed to respond to the challenges and opportunities of the Internet and other digital technologies. These treaties established new rights and protections for authors, sound recording makers and performers of audio works. They built on existing international frameworks found in the Berne and Rome conventions.

All these agreements established a minimum level of rights granted to creators under the national laws of WIPO member states. These WIPO standards have been implemented in more than 80 countries worldwide. Complying with them just makes sense. All of our major trading partners have ratified or acceded to these treaties, including the United States, the EU and its member states, and China, Japan and Mexico.

This bill seeks to protect the rights of Canadian creators in a number of areas that are as diverse as the works they create. To this end, the bill institutes new rights, such as the distribution right to control the unauthorized distribution of copyrighted materials; the making available right for performers and producers of sound recordings, who would enjoy an exclusive right to offer copyrighted material over the Internet; and moral rights for performers to ensure, for example, that a work is not altered in a way that harms an artist's reputation.

The bill would also provide new protections for our artists and creators. For example, it prohibits the circumvention of digital locks, as well as the removal of rights management information such as digital watermarks. It would also establish new rules that would prevent the manufacture, importation and sale of devices and services to break digital locks. In addition, with this bill the term of protection for sound recordings of performers and producers would be extended to 50 years from the time of publication of a musical performance.

I would also note that the bill would make photographers the first owners of the copyright of their photographs. The copyright would be protected for 50 years after the life of the photographer, harmonizing the treatment of photographers under Canada's copyright law with that of other creators. It would also harmonize with it the laws of many other countries. This would allow photographers to take advantage of opportunities in the global marketplace. At the same time, the people who commission photographs would be able to make personal or non-commercial use of the photos unless there were a contract that specified otherwise.

The bill would strengthen the ability of rights holders to control the use of their works online so that they can prevent widespread, illicit use and to promote legitimate business models. Such provisions include the creation of a new category of civil liability that targets those who enable online piracy.

The bill is also about meeting the needs of users. For example, under the fair dealings section, the bill adds education, parity and satire as purposes for which copyright works could be fairly used provided the use of the work does not unduly harm the legitimate interests of the copyright owner.

Finally, the bill introduces technological neutrality. By promoting creativity and innovation, our government is enabling the members of Canada's creative community to assume their rightful place alongside the best in the world.

Before I wrap up, I will say that there have been significant opportunities to debate this bill. In the last Parliament, there was Bill C-32 and there were previous bills in previous Parliaments. There has been more public consultation on this bill than on any other topic that we have dealt with in this House.

In the last Parliament, we saw that the committee, for which I had the honour of chairing, worked well together. The election was called and we never had the opportunity to have amendments to the bill at that point. I know the government is open to amendments and to some potential changes to this bill. We will have another couple of days of debate on this issue. I look forward to seeing this bill getting in front of committee. In the last Parliament the committee did work well together and there were opportunities to hear different viewpoints. This is a bill that is very complicated.

For those who are new members of Parliament, they will hear from a lot of different people about the various parts of this bill. There are many technical things to this bill. It does take a lot of effort to get up to speed and understand this bill. I encourage members to take the time to learn about this and the digital economy. I know many do know a lot about it.

We put this bill forward in the last Parliament and are now putting it forward in this Parliament to help create jobs and to protect jobs in Canada. I encourage the opposition and all members in this House to see this through to committee. I know that when this bill gets passed through second reading, the committee will do good work. I know there are many members of the public and many organizations who want to be in front of the committee to bring their concerns forward.

I look forward to this bill passing because it is something that is long overdue. It will be good for Canada, good for the economy, good for all people in Canada and good for creating jobs.

Bill C-11—Time Allocation Motion

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

Mr. Speaker, with regard to transparency in this legislation, I have been a part of this bill from its very inception in the previous Parliament as Bill C-32.

We had webcasts and copyright.gc.ca. We had open forums where the public could attend in Quebec City, Montreal, Halifax--I was there--Vancouver, Calgary, here in Ottawa and over in Gatineau. More Canadians participated than I ever thought would participate. There were tens of thousands, and all their submissions were put on the web for free. We made it accessible to everybody. They were freely available for people to see them, download them, debate, disagree. To be honest, it was a fantastic conversation. It was wide open, like something we have never seen before.

Let us move forward with this. Let us make it work. If my hon. colleague thinks there should have been more time used in the House and more MPs should have spoken, as he spoke on the bill twice, maybe he should have given one of his two speaking spots to one of his colleagues who did not get a chance to speak.

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

Mr. Speaker, we have not put up government members because we want to get the bill forward. We have had ministers who have stood in the House. The Minister of Industry and I have stood in the House, spoke to and outlined the intentions of this bill, what we hoped to achieve and made the government's case. Now we want it to go back to where it was in the previous parliament and get down to the details.

What we have done as a government is ceded all of our time for speaking in the House of Commons to the opposition party. We have had an unprecedented number of NDP members of Parliament, who are new MPs who did not get to speak on Bill C-32, who can now address Bill C-11, which is the same bill, and can make their points so we can move forward.

[Christian Paradis, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, I would like to repeat that this is not my first term, either. I have been here for six years. I have watched this law evolve, given that the Liberals also tried to reform this legislation. However, during the third session of the 40th Parliament, the committee discussed Bill C-32 for 39 hours—a total of 20 meetings at which 78 organizations and 122 individuals appeared. Also, 91 speeches were given over a period of eight days, for a total of 28 hours. This was followed by another seven hours with 17 more speeches.

Also, during this session of the current Parliament, we have heard over 20 hours of debate and 75 speeches. As my colleague was saying, this bill is quite possibly the most debated bill in this House. Speaking of statistics, I have some here and I can say that many people are pressuring us to pass this bill since it will have major repercussions. People are asking us to pass it sooner rather than later, because frankly, the VHS era is long gone.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I appreciate the opportunity to rise on this issue.

I happened to be the chair of the special legislative committee on Bill C-32. That bill received some debate in the House and with all party agreement it moved through second reading and to committee where committee heard from about 125 different groups and about 70 witnesses. There was a great deal of opportunity to work on the bill. Unfortunately, the election happened and at the point the committee's work came to an end.

The fact is a lot of work has already been done on this legislation. I have been here on a number of days in the House when we have had debate. Many members have already had an opportunity to speak to the bill.

Other than to delay and obstruct the legislation getting to committee, maybe the Minister of Canadian Heritage could tell us if there is any other reason that the opposition does not want us to move toward having a vote on this, getting the bill to committee and getting the work done so we can do what we can to ensure we protect jobs with this legislation.

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

Mr. Speaker, on the topic of the legislation before us, the government is actually restoring the identical bill from the previous Parliament to where it was in the previous Parliament so we can continue consideration of it.

I know it is my hon. colleague's first term. This is my 12th year as a member of Parliament and I can tell her that except for the Liberal government's Bill C-2, the response to 9/11, this legislation will have had more consideration at a stand-alone legislative committee and parliamentary and public consideration with all of the tens of thousands of submissions we received from Canadians in person and in writing and the consultations we did across the country before we drafted the bill. Then we drafted the legislation.

There was reaction to Bill C-32. The committee was considering the bill. I think the committee on Bill C-32 received over 100 witnesses before it, giving us constructive criticism and feedback on how the bill could go forward. Then we had an election.

However, we want to continue all the hard work that was done on Bill C-32. We want to carry it forward with Bill C-11 and continue the process as though it was uninterrupted because there is so much at stake and so much went into the drafting of the legislation.

My hon. colleague should know that this bill will have had more consideration by Canadians at two stand-alone legislative committees and more time in the House than any bill Parliament has seen since the Liberals' Anti-terrorism Act back in 2001. That shows our commitment to ensuring we listen to all Canadians when it comes to getting intellectual property right.

[Christian Paradis, Conservative, Minister of Industry and Minister of State (Agriculture)]

Mr. Speaker, first, we are all well aware that the NDP's strategy is to block virtually all bills. That is what the member for Acadie—Bathurst said. He revealed a plan to impede the progress of all bills by putting forward as many speakers as possible to justify a strategy in which members have the right to speak.

As my colleague, the Minister of Canadian Heritage and Official Languages, pointed out, many speeches have been given during the current session. During the last session of the previous Parliament, there were, once again, 17 speeches with a range of exchanges concerning bills C-32 and C-11. Before that, there had already been 27 hours of debate.

That is why we are saying it is now time to pass the bill as is. We will accept amendments in committee, but it is time to leave vinyl and VHS behind and move into the digital age. We have to move on without further delay. To do otherwise would be to let the nation get bogged down in yet another political impasse and fail to fulfill our international obligations according to the World Intellectual Property Organization.

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

Mr. Speaker, I will address the first part of the member's question. He is right. We have tabled the exact same bill. It is not because we are not interested in having a parliamentary debate. We put forward the exact same bill and sent it to a legislative committee. His hon. colleague, the critic responsible for this, and I have spoken about this. We are sending this, not to the heritage committee nor to the industry committee which already have very busy agendas on their own, but to a stand-alone legislative committee, specifically on this bill, so that we can have exhaustive consideration of this bill and consideration of the amendments. We have been very open about that.

We tabled the exact same bill on purpose. We had a legislative committee on Bill C-32. We want to have a legislative committee on Bill C-11 to continue the debate. We want this process that began a year and a half ago to continue right through passage of updated copyright reform. We want to hear the opposition amendments. We want to hear what the opposition has to say. We want to continue the debate substantively, with actual amendments, at the legislative committee. We want to move it forward. It is time we get this done, and it is time the opposition stops delaying.

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

Mr. Speaker, the identical bill that the House leader refers to is Bill C-32. I was involved on the legislative committee. Of course, after hearing about 150 witnesses and receiving untold written submissions, when it appeared in its new form as Bill C-11 under the new Parliament, not a single comma had been changed. This leads us to the conclusion that there was no intention to do anything with all that testimony that occurred before the committee.

The House leader mentioned that he invited the opposition to tell him how many speakers it would like to put up at second reading. We came forward, in the Liberal Party, and said we would like to have eight speakers. We were hoping that perhaps he was turning over a new leaf and was going to allow some proper debate. Then we find out today the time allocation is two days. We will be lucky if we get two or three speakers.

Is this an indication of the goodwill that the government is showing toward democracy?

Copyright Modernization Act

[José Nunez-Melo, NDP, Laval, QC]

Mr. Speaker, this is the second opportunity I have had to rise in this House and speak about Bill C-11. The Minister of Industry has reintroduced former Bill C-32 on copyright modernization, the purpose of which is to make long overdue changes. These changes will adapt the Canadian rules to technological advances, and harmonize them with the current standards.

I have noticed since the start of the session that it is often the ministers and parliamentary secretaries who answer questions. We will not stop reiterating the need to amend this legislation before seeing it pass.

This bill creates new and very powerful anti-circumvention rights for owners of content. These new provisions are backed by fines of over $1 million and sentences of up to 5 years behind bars. They would also create a situation where digital locks would practically trump all other rights. The exceptions do not adequately recognize the rights of creators.

The political issue is actually more of a trend towards meeting the demands of the big owners of foreign content, particularly American content. When will Canadians finally have legislation that meets their needs?

Our party believes that Canadian copyright laws can strike a balance between the right of creators to receive fair compensation for their work and the right of consumers to have reasonable access to content. We are going to review all potential amendments to the bill in order to create a fair royalty system for artists.

This bill grants several new privileges regarding access to content but provides no alternative method of compensation for artists. This will greatly affect artists' ability to make ends meet.

The copyright modernization act contains a number of concessions for consumers. These are undermined by the government's refusal to adopt a position of compromise regarding the most controversial issue at stake in the area of copyright in Canada.

We propose that the clauses that criminalize the removal of digital locks for personal non-commercial reasons be removed from the copyright modernization bill. We support reducing penalties for those found guilty of having breached the Copyright Act.

Our party, the NDP, believes it is high time that the Copyright Act is modernized; however, this bill contains too many blatant problems.

Over 80 organizations from the artistic and cultural sectors in Quebec and the rest of the country maintain that the bill will be toxic to Canada's digital economy.

These organizations caution that, if the government does not amend the copyright modernization act to provide for adequate compensation for the owners of Canadian content, it will lead to a decline in the production of Canadian content and the distribution of that content in Canada and abroad.

The Society of Composers, Authors and Music Publishers of Canada, SOCAN, thinks that the bill should be amended to facilitate access to creative content using new media, and that a fair balance should be struck. Without that balance, creation of creative content will eventually decline because Canadian creators will no longer be able to make a living from their creations.

A law professor at the University of Ottawa said that the provisions relating to digital locks in Bill C-11 and in its predecessors, Bills C-32 and C-60, might be unconstitutional. He believes there are doubts as to whether Parliament has the necessary authority to legislate in relation to digital locks. That is an issue.

Similarly, even if there is an economic issue, it does not seem to fall under federal jurisdiction on trade and commerce, and consequently it falls under provincial jurisdiction. It is also by no means clear whether the federal government has the power to implement international treaties that would justify enacting the bill as it is proposed.

In general, the broader the proposed provisions, the more remote they are from federal jurisdiction and the more they encroach on provincial powers. At minimum, certain aspects of this issue affect the sphere of provincial powers. All of this suggests that the attorneys general and other provincial decision-makers should be actively involved in the discussion.

As for consumers, the "no compromise" provisions grant unprecedented powers to rights owners, which supersede all other rights. If Bill C-11 is enacted, it could mean that we will no longer have access to content for which we have already paid, and we will have no right or recourse. It is draconian and unacceptable to ask students to destroy course notes within 30 days of when the courses end, as this bill proposes.

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

Mr. Speaker, once again, at the risk of infringing my own copyright, I would like to answer his question with the illustration of a point or perhaps revert back to a popular ad that was played. The number of submissions on Bill C-32, hundreds; the number of changes, zero; political lip service, priceless. Absolutely nothing was done to change it. What is the point of having all of this input, all with great amendments, I might add, when none of it was even looked at?

The member can sit there and pretend that he is listening all day. Some people build relationships on it. Nonetheless, I digress. Unfortunately, in this particular case I would suggest that he follow his own advice. He talked about The West Wing going to his town. As far as I am concerned, if he thinks that the production value is created by smaller communities such as mine or his and, if he is so concerned, he should worry about the artists who get the money directly to help ply their trade, not digital locks.

[Paul Calandra, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Mr. Speaker, when The West Wing, which was a popular TV show, was filming its last episode, it came to my home town of Stouffville. A number of local businesses were able to participate in the show; from the baker who provided the food and snacks for the actors and crew to the people at the local hardware store who supplied generators to the production. All these people benefited from having a production like this in my home town of Stouffville.

I would suggest to members opposite that when this industry decides where it is going to make such important investments that create hundreds of thousands of jobs, it will look to jurisdictions that, along with their international partners, will actually protect the work it is creating. When I talk about people, like hairdressers, seamstresses and set designers, those are the people I am talking about.

Could the member confirm for me if he was on the select committee that studied Bill C-32? I think I am correct in suggesting that there were some 7 hours of debate in committee, 32 hours of witness testimony from 76 individuals and 153 individuals and organizations who submitted written submissions. This is actually the second time the member has spoken on this bill.

I am wondering how much debate is required before we send this bill to committee and continue to hear from some of the people who have not had the opportunity to speak. I also wonder if he could explain to the NDP the concept of Hansard whereby people can go back and review some of the testimony and comments made in previous discussions on both Bill C-32 and Bill C-11.

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

Mr. Speaker, I think he is right. I hope some of this is illustrated within the context of committee. Unfortunately, from what I understand, and I may be mistaken or at least I hope I am mistaken, the committee does not want to bring back anybody who was a witness during the last round when it was examining Bill C-32, which is a shame because all the new members in the House could have a good conversation about this.

As to the TPM measures, we must keep in mind that, as we say in legislation in many cases, there is nothing new under the sun here. Many countries have dealt with this and by way of example we should look at them, like what the U.S., New Zealand and Australia did. My hon. colleague makes a valid point.

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

Mr. Speaker, we want to take a look at the copyright modernization act in many respects.

I think there is some confusion over time allotment. I think that this question being put being means we cannot put any amendments in at this point. That is unfortunate. It is the last opportunity we get to put up amendments without running the risk of fundamentally changing the bill, its scope, and its principles because now when we vote on it, and I assume if every Conservative votes for this, then it would pass and go to committee. We are somewhat constrained as to where it can go.

The Minister of Canadian Heritage has already said that he will accept some technical amendments and some other amendments in general. However, the problem with amendments in general is that they will not be accepted at that level because we cannot fundamentally change that bill before saying yes to it in scope and principle.

So, I think that the door has been closed on that last opportunity for amendment. That is unfortunate. One of the issues that I want to talk about, and I did not have the chance to during the last part of the debate on Bill C-11 pertaining to copyright modernization, is an issue that could have been dealt with here but was not; that is, artist's resale right.

I had representation from several groups that talked about artist resale rights. The Conservatives have said time and again that they want to get on board with the times, as it were, change the Copyright Act so that it reflects the modern times. That this is what other countries are doing, which is always the refrain.

However, this is something that other nations are doing, as well: artist resale. I hope that the Conservatives will give it some consideration in the future, maybe as something stand-alone.

I will give an example just to illustrate my point.

Acclaimed Canadian artist Tony Urquhart sold a painting called The Earth Returns To Life in 1958 for $250. That may have been a fair chunk of change back then, but it certainly is not today if we are selling art. It was later resold by Heffel Fine Art auction house, in 2009, for approximately $10,000. Similarly, his mixed media piece Instrument of Torture originally sold, in 1959, for $150 and ended up receiving $4,500 in the same auction. Without an artist's right for resale, the artist would not benefit from the increased value of his work whatsoever.

So other nations have gotten on board with this, allowing the artist to receive a percentage of those sales as long as the painting exists. Of course, that is something we need to be talking about here, as well.

Nonetheless, back to the copyright here at hand. Bill C-11 mirrors what was Bill C-32 in that we expressed some great reservations and the debate has gone around TPMs, or digital locks. I will get to that in just a moment.

The reason I brought up artist resale rights, by the way, is because I received some input from people who say we are not talking about artists enough in this particular debate and a lot of it has to do with digital locks; albeit, important, but let us keep in mind here the impact on the artist.

My hon. colleague, the parliamentary secretary, talked about people involved in the movie industry, the seamstresses and the other occupations. However, my fundamental question to that would be, if these people wanted to make a better living, I do not know how digital locks are supposed to be the be all and end all for them to continue doing their trades for the rest of their lives.

Aline Côté is the chair of Association nationale des éditeurs de livres. She represents Quebec and French Canadian publishers. This is how she describes copyright, which I think is a very apt description:

In fact, nothing is simpler than copyright law: if you create something original outside an employment framework, it is yours exclusively; you can give it away, sell it, authorize a third party to sell it for you, etc. Copyright law simply acknowledges a creator’s exclusive intellectual property on his work upon its creation. Since the initial work exists as a single entity (a manuscript or print-ready for books, a master copy in the case of movies or music, etc.), this exclusive ownership right gives the creator the right to authorize the reproduction of copies (copyright).

That being said, I want to return to the debate regarding TPMs.

We are talking about a bill that the government says is fair and balanced, but unfortunately some of it just does not add up or make sense. In some cases it is black or white, but there is no grey matter to deal with these situations, and the digital locks regarding the education exemption is a fine example. Here is what I mean by that.

An education exemption is in place for people who want to use materials mostly in a structured classroom, but even that now has had quite a bit of debate. How do we know what a structured education forum is? Does the bill go far enough to explain that? Is it a technical amendment that we have to look at? I believe that it is. If a corporation provides some training material internally, does that corporation have to be part of a collective? Can it get away from that now because it receives that exemption? That is not a proper educational structure within a corporation. It is certainly nothing akin to a post-secondary institution like a college or a university. That needs clarification.

Let us say one is within a legitimate education area, a school, a university or a college, and providing material free of charge under that exemption. What if that material is digitally locked? A right to fair dealing, a right that one would acquire under this legislation, is there but also in this legislation there is a digital lock. The two conflict.

Many countries have gone through this already, including New Zealand, Australia and now the United States of America, which also has exemptions for education but is also very strict on the idea of digital locks.

The government, and the Minister of Canadian Heritage in particular, have talked about having to live up to their obligations under the World Intellectual Properties Organization, or WIPO. Living up to those regulations may be excessive. New Zealand, Australia and the United States of America worked on ways to provide certain exceptions to circumvent these locks for the sake of the education exemption. In other words, they found there was a problem and they fixed it by doing that.

In the copyright legislation there is also a provision that would allow someone to purchase music and share it among his or her devices, unless it is TPMed, or digitally locked. The individual has the right to use that music on personal devices, but if it is digitally locked, which would be allowed under this legislation and is being promoted, then the two conflict. Under fair dealings the individual would not have the right to that song.

My colleagues across the way look at the video gaming industry as a good example. A good example is the fact that I can understand completely, wholeheartedly, why digital locks work in that particular circumstance if they protect the business model they are in and they are correct. These digital locks will do that. The use of digital locks cannot be expanded from this one sector to all of the others.

This legislation has been done in haste. We have to look at it. I do not know that by accepting this in principle at second reading would give us the freedom to look at it even further.

Here is what we suggested in our amendment, which I think is right. It is a direct test to an exemption. There are two ways of looking at this. We could study exceptions to the rule that we have been talking about extensively. One is Canadian made from 2004, that is the CCH ruling as we normally call it. There are six steps involved there. The other step is more of an international standard which is the Berne Convention from TRIPS. That is called a three step test measure, and I will read it out, “The courts shall interpret any exceptions to copyright infringement or limitations on copyright in this act so as to restrict them to (1) certain special cases that do not conflict with the normal exploitation of the work, and (2) do not unreasonably prejudice the legitimate interests of the author number three”. It is pretty profound when we think about it. If this material is provided to a school or a particular individual a three step test like this must be applied so that fair and equal balance is created.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I have one preliminary remark. I simply must comment on the fact that this important debate on the future of culture in Canada and in Quebec is mostly taking place on one side of the House. No Conservative members are rising to defend the government’s bill.

The New Democrats are standing up to defend creators and artists, but the Conservatives are sitting in silence, even though it is their bill. Since they are already aware of how damaging the bill is going to be for our creators and artists, they are remaining silent, and are not bothering to explain the objective of Bill C-11. So we will do so, and we will put forward as many arguments as possible.

I also wish to say that I am very proud to rise today to speak about this important bill. I am proud for two reasons. First, I come from a family where culture is extremely important. My father is a writer and my brother is a musician. Because of this, I know just how important the five cents or so for radio airplay can be. I understand the importance of photocopies in a school. I know how important it is at the end of the year for writers, artists, singers, and musicians. We are not talking about a trivial amount. And yet, copyright—the rights of authors—is being overhauled and turned inside out by the bill under discussion today. Artists in Quebec and Canada are making a heartfelt plea, and I think it is important to listen to them.

The other reason I am proud to rise today to challenge and debate Bill C-11 is that I have the opportunity and the honour to represent Rosemont—La Petite-Patrie, an extraordinary riding where artists and craftspeople abound, where folks give things a try and have ideas, and where people want to express their point of view and their vision of the world. It is for them that I rise today, to stand up for their rights including their right to a decent life. I rise to stress how important it is to truly support artists and not pull the rug out from under them by cutting off their revenue streams, which are so important to these people who contribute to the soul of the Quebec and Canadian nations. Quite the contrary, they deserve a lot more recognition and respect.

In Quebec, there is an unprecedented outcry from artists, cultural groups and copyright collectives. I shall now list the associations that previously spoke out against Bill C-32 and oppose Bill C-11, which is a carbon copy of the Conservatives' former legislation.

Here is the list: the Association des journalistes indépendants du Québec, the Association nationale des éditeurs de livres, the Association des professionnels des arts de la scène du Québec, the Société de gestion collective de l'Union des artistes, the Association québécoise des auteurs dramatiques, the Association des réalisateurs et réalisatrices du Québec, Copibec, DAMIC, Artisti, the Guilde des musiciens et musiciennes du Québec, the Regroupement des artistes en arts visuels du Québec, the Société des auteurs de radio, télévision et cinéma, the Société de développement des périodiques culturels, the Society for Reproduction Rights of Authors, Composers and Publishers in Canada, the Société québécoise des auteurs dramatiques, the Société professionnelle des auteurs et des compositeurs du Québec, the Union des artistes and the Union des écrivaines et des écrivains québécois.

Why is this Conservative government incapable of listening to the people who are mainly targeted by this bill and who are saying that it is threatening artists' survival as well as culture in Quebec and Canada?

Why is this Conservative government incapable not only of listening, but also of speaking to artists, explaining its objectives and explaining why it is risking potential losses to creators of $75 million in Quebec alone? That is serious.

The NDP condemns the 40 new exceptions in Bill C-11 concerning the free use of works. We cannot confuse free use with access to a work. It is important to provide access, but for it to be free represents the death of the artist, who would have to find a new job. That is significant.

The Conservatives have a vision of culture, but it does not include creators. Culture is important, and they will discuss it in speeches; they will say that it is nice, it is good, but when it comes to really helping people who have good ideas, who have dreams and who want to say what is in their soul and express their vision of the world, the Conservatives slash their funding and their income. What will happen? Creators are at risk of losing at least four sources of income.

First, the new private copying system is completely obsolete.

It offers no compensation for artists. That is the first source of income that is going to disappear for artists.

Second, since 1990, there has been a levy on blank cassettes and CDs. That is because when people make a copy of a song, they download it or they make a copy of a version they get from a friend or family member or neighbour. The artist who created and recorded the song and the people at the studio do not get anything more. That is it.

That is the method everyone had agreed on so that copyright could be shared and we could ensure that the artist and the creator earned something. Now levies on cassettes and CDs have become completely outdated. Who still buys audio cassettes today to listen to music?

Why is there no adaptation to new technologies in this bill? We are told we need to modernize. Let us modernize. Why are there no levies for MP3s or iPods? That is how young people and children use their music and listen to it now. Why are artists having this taken away from them?

In 2008, $30 million in levies was distributed. In 2010 it was only $10 million. Artists lost two-thirds of transfers, and there is nothing in this bill to compensate for the copies that will be made.

Royalties are being abolished for ephemeral recordings by broadcasters. In this case they will stop paying $21 million to artists and people in the music trades. This is serious.

As well, schools and universities have to continue doing their share to support writers, the people who supply the materials found in their libraries. That represents $10 million a year. This system has existed for a long time. It works well. We do not understand why there is a need to pick it up, tear it apart and throw it on the ground and offer no support or other compensation for artists in this regard.

So we are very concerned. The Conservatives have already cut programs that enabled our artists to go on international tours, to get exposure abroad and to take Quebec, Canadian or aboriginal culture around the globe. They have already cut that support. Today, they are cutting directly. The Conservatives are directly attacking the incomes of artists, writers, singers and creators. That is unacceptable to us.

I also wanted to stress the fact that by eliminating or jeopardizing the payment of significant amounts to creators, Bill C-11 also contributes to weakening all the copyright collective societies, and yet these societies are an essential link in the administration of copyright.

UNESCO has said of copyright collective societies that they are “one of the most appropriate means of assuring respect for exploited works and a fair remuneration for creative effort of cultural wealth, while permitting rapid access by the public to a constantly enriched living culture”. That is a quote from UNESCO. Obviously, once again, the Conservative government is refusing to listen.

Creators’ incomes, and the very existence of copyright collective societies, are thus jeopardized because of this government’s determination to promote a single business model: the digital padlock, the digital lock, putting locks on works.

Artists do not want their works to be locked. Artists want it to be possible to distribute them and download them, but they want something in return. They want their songs to be listened to by as many people as possible, but they want to get something in exchange.

In Quebec, Luc Plamondon has been clear on this. We thought copyright was recognized by people in our society. But today, copyright is being hurt. And all the artists are the ones who will be hurt. Culture as a whole is also at risk.

Once again the government has given in to the siren songs of big business, which seems to be the only winner with Bill C-11, a bill that is totally out of whack. There are winners—the major movie studios and the U.S. movie studios. Contrary to its claims, the government is not protecting creators; it is attacking them directly.

I will stop here, but I have a great deal more to say. I urge our colleagues opposite to listen to artists, to hear their appeals and to support culture by accepting the NDP amendments to improve this bill and make it a real bill that will modernize copyright by moving into the future and not returning to the dark ages, as Marie-Denise Pelletier said in Quebec.

[Djaouida Sellah, NDP, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I wish I knew what the Conservatives have against this country's workers. After the tax cuts to large corporations, the subsidies to oil companies and all the inappropriate expenditures for the G8 and the G20—always with Canadian taxpayers' money—the government now wants to target our artists' income.

Many of the artists we love, admire and appreciate are not rich. The majority of them have a very modest income and, because of the nature of their occupation, it is not a stable income. They must accept contracts and work at many jobs to provide for their needs and those of their family.

In Quebec, the average income of artists is estimated at $24,600 per year, based on the 2006 census data. We are talking about $24,600 to pay for rent, food and transportation, to send one's children to school and look after their needs. That amount must also cover heating costs and the material needed to create. What makes things even worse is that, with an annual income of $24,600, Quebec artists are considered to be the richest in Canada. That same year, the average income for artists in Canada was estimated at $22,700 per year.

These numbers reflect the reality of our actors, painters and singers. Our artists are struggling to make ends meet. While all the evidence should convince the government to provide increased support to our creators, it prefers, as in Bills C-10 and C-19, to ignore the facts and please the cultural industry's big businesses. This bill is going to hurt artists and make them poorer. And they certainly cannot afford that.

The Union des artistes is worried about its members' income and so are we on this side of the House. How can artists continue to create if they do not have the means to do so? Copyright royalties are an important source of income for Canada's creators. This government must ensure creators receive their fair share and are paid for their work.

I wish this government would take out its earplugs and start listening to the Society of Composers, Authors and Music Publishers of Canada, which is asking that the bill be amended so that artists are compensated fairly for the use of their creative work in the new media.

I also wish it would listen to the Society for Reproduction Rights of Authors, Composers and Publishers in Canada, which is telling it that this bill is going to have a significant impact on creators' income and that it needs to be amended in order to strike a balance between the interests of creators and those of consumers. Unfortunately, as with Bills C-10, C-13, C-18 and C-20, this government prefers to turn a deaf ear.

Passing this bill would have a very negative impact on our country's cultural industry, and it would have a direct impact on creators' income. Moreover, many people are worried about producers and publishers, who would not enjoy the same protection as holders of scientific patents.

We are not stupid. Canada's copyright laws need to be reviewed. Former Bill C-32 was reviewed in committee, but the Conservatives chose yet again to ignore the recommendations made by the witnesses who appeared before the committee.

This bill could potentially create more problems than it solves. That is why I cannot support it in its current form. Even the Union des artistes finds that some of the wording is ambiguous and that court challenges are inevitable. For example, they cite the concept of fair dealing for the purpose of education and that of reasonable grounds.

Why is this government still refusing to listen to opinions that differ from its own? Why does this government not want to work with all the players involved in copyright in order to reform it properly and adapt it to the reality of the 21st century? Such stubbornness would not be so bad if Canadians did not have to bear the consequences of the government's bad bill. Copyright in the digital age has to build on two fundamental principles: accessibility for consumers and remuneration for the artists.

Unfortunately, the Conservative government has not respected either principle. It is directly compromising the millions of dollars in royalties artists receive under current copyright legislation, and it is encroaching on consumer rights by adopting provisions on digital locks.

The fact is that this bill gives consumers rights they will not be able to exercise. The general provisions on digital locks will allow the companies to decide which legal rights can be exercised and which cannot. This unbalanced perspective will end up harming artists and educators. That is also quite worrisome.

I urge this government, the Minister of Industry and the Minister of Canadian Heritage and Official Languages, to review this bill in light of what was said in committee during consideration of the now defunct Bill C-32 and to listen to what the artists have been trying to get across, in order to ensure that this copyright reform is balanced and beneficial to everyone.

[José Nunez-Melo, NDP, Laval, QC]

Madam Speaker, I would first like to commend the hon. members for Winnipeg Centre and Argenteuil—Papineau—Mirabel for their excellent remarks about Bill C-11.

I have the opportunity to once again speak specifically about Bill C-11, which was introduced to amend the Copyright Act. The Conservatives named it the Copyright Modernization Act.

In summary, the Conservative caucus once again introduced this bill, which proposes amendments that have been needed for a very long time. These amendments would adapt the act to take into account new technologies and to make it consistent with current international standards. However, this is a very complex issue because it involves the conflicting demands of stakeholders in artistic communities, universities, the technology sector, business and consumer protection groups.

Bill C-11 is identical to Bill C-32, which was introduced previously. It had the same name, the Copyright Modernization Act. Specifically, the bill creates powerful new anti-circumvention rights for content owners, preventing access to copyrighted works. In addition, these new provisions are supported by fines and prison terms.

In this bill, the Conservatives have deliberately avoided addressing the issue of a possible extension of the private copying exception, a measure proposed by the NDP several times and supported by a number of experts.

In this regard, the NDP believes that it is high time to modernize copyright rules, but that this bill has too many major problems. The NDP believes that Canada's copyright rules could balance the right of creators to appropriate compensation for their work and the right of consumers to have reasonable access to content.

We will study every possible amendment, including those mentioned by the hon. member for Timmins—James Bay, that could be made to the bill in order to create a fair system of royalties for artists.

It seems that all Canadian efforts to modernize the Copyright Act have really been attempts to meet the demands of big U.S. content owners. That is the situation. When will Canadians finally have a law that meets their needs?

We want to amend the bill so that it better reflects the interests of Canadians. Many organizations, individuals, lawyers and legislators share our position.

The list includes Michael Geist and more than 80 organizations working in the arts and culture, in Quebec and throughout Canada, such as the Writers Guild of Canada, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, and the Society of Composers, Authors and Music Publishers of Canada. It also includes eminent lawyer Howard Knopf, the Society for Reproduction Rights of Authors, Composers and Publishers in Canada, Jeremy F. de Beer and Cory Doctorow. I wanted to mention just a few of the people who have something to say about the NDP's proposals and support them.

Once again, I would like to point out that we should perhaps listen again to the excellent speech by my colleague from Argenteuil—Papineau—Mirabel. She was very explicit in her speech, which clearly captures the need to make these changes to Bill C-11 introduced by the Conservative caucus.

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Madam Speaker, I thank my colleague. Indeed, that is what my recent speech was about. That is also what the Bloc Québécois has noticed, along with creators in Quebec, in particular.

Almost a year ago, on November 30, 2010, 100 or so artists came here to the House of Commons. The member for Winnipeg Centre perhaps met a few of them. They told us that Bill C-32 at the time—now Bill C-11, which is a carbon copy of that bill—made it possible for some people to take works belonging to creators and artists without their being compensated for their work. No one here in this House would want to work for free.

Furthermore, when artists are not compensated for their work, they do not have the motivation or ability to continue to create more works. It is not only artists who are penalized, but also consumers, because they will lose the artists they love if those artists are not compensated for their work.

The current bill allows just that. The bill does not acknowledge that there are new technologies that allow people to copy music without compensating the artists. At the time, when we had blank cassettes and CDs, the artists received a levy. That is not done with iPods and MP3 players. That is a huge flaw in this bill.

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Mr. Speaker, I too am pleased to take part in the debate on Bill C-11. I have been listening for some time to the speeches, comments and remarks made by members on both sides of the House. I feel like I am back in the previous Parliament, when the same legislation, namely Bill C-32, was introduced. Unfortunately, the government does not seem prepared to accept the proposed amendments.

The government often tells us, and members opposite like to mention, that hundreds of people appeared before parliamentary committees, particularly the Standing Committee on Canadian Heritage, regarding this issue. They say that everybody was heard. I do not think so, as evidenced by the fact that, in the end, the government came back with a cut and paste version of Bill C-32. It sure did not listen much to those who spoke on this issue, because no changes were made.

Yet, as my colleague mentioned a few moments ago, it would have been possible to make the necessary changes to this bill. Many people, including composers, are currently experiencing problems because of the new ways used to record music. After expressing their views, they would have liked to see some changes in the new Bill C-11, so that copyright is truly respected and artists, who do not work for free, can be paid based on the fair value of their artistic or creative work.

It is the same thing with piracy. Some witnesses who appeared before the committee when we were dealing with Bill C-32 told us that this legislation did not really deal with what is happening now with the new technologies, which allow people to steal works at will. Obviously, this is also not an issue that was examined when Bill C-11 was drafted because, as I said, it is a cut and paste copy of Bill C-32.

Consequently, there is no way the Bloc Québécois can support Bill C-11 in its present form. It was the same thing with the previous legislation. Our position was exactly the same.

Since I am short on time, I shall limit my comments regarding the Conservatives' bill to the issue of copyright. I do wish to say, however, that a fundamental principle has been forgotten in this bill, and that is that artists need an income to survive and to continue to create. Had this simple principle been upheld—a principle that undoubtedly in the eyes of everyone here is nothing but common sense—we could perhaps have talked business, so to speak.

I would like to remind the House that almost a year ago, on November 30, about 100 Quebec artists came to Parliament to express the opinion I just stated. The brother of our acting leader, Luc Plamondon, was in attendance. Robert Charlebois, Michel Rivard and Richard Séguin were also there. I met someone from my riding, the artist Dumas. All of these people came to Parliament Hill to tell the heritage and industry ministers, as well as the entire Conservative caucus and every member of the House of Commons, that they wanted nothing to do with the copyright bill that the government was bent on introducing.

I do not think I would be far off the mark if I were to speak on their behalf today and say that they still hold this opinion, since the bill has not been amended.

We know that no one can work for free. If we stop paying artists royalties for their copyright, if we literally take away their livelihood, consumers will also lose out, as they will be deprived of new artistic creations.

We know how things work today. I am a good example of this. I am no whiz kid when it comes to technology. My younger brother is more technologically minded. He is perhaps more of an expert in technology than I could ever be, but what I do know is that I bought a little iPod to jog with. I have a second one that I carry around with me and use in my car. I download music legally. I make purchases, pay the charge, and then I enjoy the music that I have downloaded to my iPod. The upshot is that I am no longer a big consumer of CDs. My wife always asks me what I am going to do with the hundreds of CDs I have collected over the years. I am a little nostalgic and, I guess, conservative—this is perhaps the only area in which that is the case—but I want to hold onto my CDs. They are more of a souvenir than anything else.

Even if there is a compact disc player in the car and at home, people always end up plugging in the iPod. Given that artists are selling fewer and fewer CDs, they have to be able to receive payment for their work in return. If I do not pay them, the artists will no longer produce music, having no resources to do it. So I have just penalized myself because I cannot listen to them any more. I referred to Dumas earlier. I have bought his CDs and I downloaded his last one to an iPod. I have done the same thing for Vincent Vallières. I did not buy his CD, I downloaded it. But these and other artists, France D'Amour and company, have to receive royalties for that.

Nowhere in Bill C-11 do we find solutions to this problem. At present, creators are not receiving their due. The Conservatives refuse to let them have royalties for the use of their works on new media: MP3s, the Internet, iPods and so on. I do not want to be advertising for anyone here, but everyone has them these days. The Conservatives are engaging in enormous demagoguery when they say we want to tax purchases of those devices. In any event, royalties are already being paid. We used to pay them on blank discs and cassettes. That is another problem my wife and I have. I have kept my old cassettes in big boxes. We paid royalties on blank cassettes so the artists could receive their due. Today, those media have changed to MP3s, iPods and so on.

We are in favour of a reform of the Copyright Act, but not the reform presented by the government in its Bill C-11. With this bill, the government claims to be protecting creativity. But creators themselves do not share that opinion, including all the ones I listed earlier and many others who returned to the charge on the Hill some time ago. Nearly all MPs had an opportunity to meet with artists who told them the same thing.

Artists’ associations have come out against the bill in its present form; they include the Association des professionnels des arts de la scène du Québec, the Association québécoise des auteurs dramatiques, the Conseil des métiers d'art du Québec, the Regroupement des artistes en arts visuels du Québec, the Société des auteurs de radio, télévision et cinéma, the Société professionnelle des auteurs et des compositeurs du Québec and the Union des écrivaines et des écrivains québécois. There are also associations of performers like the Guilde des musiciens et musiciennes du Québec and the Union des artistes. And there are copyright collectives like the Society for Reproduction Rights of Authors, Composers and Publishers in Canada, the Société de gestion collective de l'Union des artistes, the Société québécoise de gestion collective des droits de reproduction and the Société québécoise des auteurs dramatiques. And that is just for Quebec. There are other associations elsewhere in Canada that have said they are dissatisfied with the bill as it now stands.

I want to get back to users and consumers. All of these groups, collectives and organizations work directly with artists. We could say that the users and consumers watching at home who are less familiar with the bill—Bill C-11 is rather technical—will be happy with Bill C-11, since they will be able to more freely use any works they have acquired. At least that is what the government claims. But I want to tell the government that the Canadian Consumer Initiative, which includes the Union des consommateurs and Option consommateurs, has spoken out against the fact that with its copyright bill, the federal government is once again abandoning consumers by giving in to corporate demands.

We are told that the consumer rights provided for in the bill to strike a balance could be restricted or even denied by the entertainment industry. This bill causes problems for both creators and consumers. It must be amended before the members of the Bloc Québécois will support it.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I know my friend from Saanich—Gulf Islands has put some effort into learning about this issue.

I was first elected back in 2004. I sat on the heritage committee. We heard at that time that Canada had signed the WIPO agreement back in 1997 and yet in 2004 it had not complied with what it had in fact signed. We are now almost 2012 and still we are not compliant with WIPO.

I chaired the special legislative committee on Bill C-32. We heard from 100-plus witnesses. A lot of work has been done on this.

I know that the hon. member has spoken about some very positive aspects in the bill. There is one aspect I want to ask her about because in one part of the bill there is a provision for a mandatory five year review.

The digital economy is changing rapidly. Is that something the member sees as a positive aspect of this bill?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I rise to speak on Bill C-11, An Act to amend the Copyright Act, joining other colleagues who have found some of the aspects of this bill problematic.

I am going to approach this bill a little differently from the way some other members have. I think we need to recognize the context of where we are at second reading. This bill is going to go to committee. What I would like to do is dedicate my remarks and focus on a rather direct appeal to members on the government benches to take the opportunity to seize a victory that they could have by putting forward a bill that would have the support of all the groups that are now being critical. I do not think that is impossible at all.

We recognize that there have been some improvements. There is general agreement by all knowledgeable people in this area that we need to modernize the Copyright Act and that we have significant challenges with new technologies. I sometimes think about this place, this room, this House of Commons, and try to imagine our predecessors in Parliament in the 1930s trying to grapple with what we are speaking about today. It is all new, and it changes fast.

Almost as quickly as we might legislate this bill, we will find that we need to make additional changes to deal with new implications and new ways in which copyright becomes recognized and the way in which copyright is challenged creative rights need to be protected.

What I would like to do is concentrate my remarks not in attacking the bill so much, although I do have to attack sections of it, but with a goal of hoping that when this bill goes to committee, amendments will be allowed.

We have seen a worrying trend in this 41st Parliament; it is as though amendments to legislation after first reading are somehow incremental defeats of the government of the day, whereas in fact it is common practice in Parliaments around the world, and certainly in the Canadian Parliament, to recognize that a bill at first reading is not perfect. It can use improvement, and using the committee in as non-partisan a way as possible will bring improvements to the legislation.

When I look at this legislation and what the government has said, I see in the preamble, which always guides statutory interpretation:

...the Government of Canada is committed to enhancing the protection of copyright works or other subject-matter, including through the recognition of technological protection measures,

—and this is the important part—

in a manner that promotes culture and innovation, competition and investment in the Canadian economy;

It goes on to say:

And whereas Canada’s ability....is fostered by encouraging the use of digital technologies for research and education;

A tremendous balancing is being suggested here and is being aspired to by the government in its preamble. It falls short, but we do not need to be condemnatory; there is much in the bill that is an improvement. The problems that remain tend to focus in one specific area, and that area has been referenced a good deal in the debate today: digital rights management and the use of devices and technology such as digital locks.

That is just a preamble to my point. We also see in the very beginning of the bill, in the preamble, that the Government of Canada wants our legislation to meet new global norms. It specifically refers to the World Intellectual Property Organization, which I will just refer to as WIPO. That WIPO treaty is one to which Canada wants to adhere.

However, numerous commentators have pointed out that the legislative approach in this bill exceeds anything required by WIPO. I am hoping that the government can pull back slightly--in a significant way, actually--from the parts of the bill that members on the opposite benches find unacceptable. Really, the government has accommodated a lot of concerns and has improved the bill. I know it is virtually the same as Bill C-32 in the last Parliament, but it has gone through some improvements from its first iterations. We are close.

Government members on committee, with the direction from the Prime Minister's Office, I am sure, taking a keen interest in this bill, could actually accommodate the different concerns of critics and emerge with a bill that would earn praise across all parts of the House of Commons.

Professor Michael Geist has been referred to in the debates this afternoon. He is a professor at the University of Ottawa and is the Canada Research Chair in Internet and e-commerce law. I found his comment quite appropriate to my own sense. He criticized the bill initially as flawed but fixable. He still holds to that view--flawed but fixable--so let us fix it.

What he said he finds problematic is that as he sees it, the bill is an omnibus bill that combines two different pieces of legislation.

The first piece is the part that I think I can speak for all members of other parties, but I think it is fair to say that most members in the House find the first bit, which he described as the copyright modernization act, to be quite acceptable, generally good. Maybe some of the restrictions go too far, but overall, it is good progress in copyright modernization.

He describes the other part of the law, which we find unacceptable, and he has given it a title, “The reduce U.S. pressure copyright act”. The problems have emerged in that area.

The problems are in two areas, and I will refer to the first. Briefly, it is constitutional. The constitutional problem is simple to describe. Copyright is clearly an area of federal jurisdiction, whereas property rights are provincial. To the extent that we have intruded into property rights, we have a problem. This has been described in a learned article published by professors Crowne-Mohammed and Rozenszajn, both from the University of Windsor, in the Journal of Information, Law and Technology in which the authors describe the problem this way:

The DRM provisions of Bill C-61 represent 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.

Let us de-link them. Let us protect the rights and protect copyright reform without acceding to pressure from U.S. interests, which want to have excessively restrictive controls in the form of digital locks. That is setting aside the constitutional issue.

The next set of concerns I would like to raise really relate to public policy concerns. One of the very strong groups of critics on this matter is the Public Interest Advocacy Centre. I should confess that the Public Interest Advocacy Centre was the organization that initially brought me to Ottawa in 1985. I left a law practice in Halifax to become senior general counsel to the Public Interest Advocacy Centre, not really a conflict of interest but a convergence of my history. I wish to quote their legal position:

Consumers enjoy certain rights to use content without infringing copyright. The presence of technological measures doesn't change that, and neither should anti-circumvention laws. Consumers must be able to circumvent technological measures, like DRM, providing that their access to the underlying content does not infringe copyright.

It goes on to say, “Anti-circumvention laws shouldn't statutorily undermine the values that are invoked in public policy goals such as consumer welfare, free speech, and innovation”. That is a public policy concern that comes from the Public Interest Advocacy Centre.

As members throughout the House will know, the bill has been criticized by many groups, but those criticisms are not in multiple sections of the act. They focus very clearly on the problem of digital locks.

Another group that has taken the digital lock section in its crosshairs is the Canadian Internet Policy and Public Interest Clinic, also based at the University of Ottawa. They point out:

Unfortunately, the bill also succumbs to U.S. pressure and makes fair dealing--including the new exceptions for the many ordinary activities of Canadians--illegal whenever there is a “digital lock” on a work. A digital lock will trump all other rights, forbidding all fair dealing and keeping a work locked up even after its copyright term expires. Overall, these digital lock provisions are some of the most restrictive in the world.

This again is an issue where we are exceeding what is required of us to meet international norms under the WIPO Treaty. The digital lock provisions go too far.

We have heard from members opposite on the government benches that the bill needs to do all these things because we must protect Canadian jobs. I just want to speak to that.

The Canadian arts and culture industry, as we realize, is a very important part of our economy. It is a $46 billion industry annually. It employs over 600,000 people. The government should take note of the fact that most of the professional organizations that represent the creative force in the arts and culture community collectively and separately have called on the government to amend the legislation, have urged it to amend the legislation.

I will not read out all the names of the organizations, but there is an organization to which I also confess to belong, the Writers' Union of Canada, but beyond that there is also the Royal Canadian Academy of the Arts, Société québécoise des auteurs dramatiques, and the Writers Guild of Canada.

Therefore, I ask the government to consider, why would it be that just about every organization in the country representing creative people appreciate some portions of the bill and find others go too far? With that, I ask the hon. members opposite to please consider amendments, improve the bill--

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Mr. Speaker, I am pleased to rise today in the House as a representative for the people of Scarborough—Rouge River to join this debate. The issue of copyright modernization is on the minds of many of my constituents and I am happy to bring their concerns forward today.

Copyright modernization is definitely required to bring Canada into the 21st century and to catch up with the technological advances that we have seen since the creation of the existing copyright legislation. We need to reform our copyright legislation in a way that will create a balance between the two fundamental principles that drive copyright legislation: ease of access and the right of remuneration for the creator.

Bill C-11, which is exactly the same as Bill C-32 that was brought before the previous Parliament, does not create balance between the ease of use and the right of remuneration. Instead, the bill is about corporate rights, which is different from copyrights.

The right of artists to have remuneration for their copies is under direct attack point after point in the bill. Instead, there are areas in the bill where the right of artists to be paid is taken away and replaced by a false right, the right to lock down content.

The Conservative government is very partial to locks. We know that. It really understands prisons and locks.

In the introduction to the bill, we heard the minister say that the digital lock would restore the market. I am very skeptical about that. Through my conversations with constituents and friends in the music industry, I have never met an artist who could feed his or her family on a lock. Instead, these artists feed their families on the right they have as artists to be remunerated through their mechanical royalties, television rights and book rights. Mechanical royalties provide a small amount of return for their efforts, but that return is crucial to them, especially to young aspiring new artists.

Therefore, when the government comes along and attempts to strike out, as it does in the bill, the mechanical royalty rights that have been guaranteed under the Copyright Board of Canada, it deprives artists of the millions of dollars that actually make it possible to carry on the works. How is this restoring the market? I do not understand.

The other crucial element, one which New Democrats have asked for again and again, is copyright reform that addresses the needs of Canadian consumers, artists and students in a digital realm. This element is one of huge importance to my constituents.

The bill poses a fundamental problem with its education provisions. The restrictions it would impose on students and teachers are extremely problematic.

Copyright has historically been based around the idea that creation and knowledge must be shared. Historically, copyright law has been designed to facilitate education. Actually, the first piece of copyright legislation ever adopted was Britain's act for the encouragement of learning. Canada's original copyright legislation was designed with similar intentions. The reforms in the legislation proposed by the bill do not, unfortunately, maintain the same founding principles and completely ignore the original intent of copyright legislation in Canada.

The Scarborough campus of the University of Toronto and the campuses of both Centennial College and Seneca College border my riding. The restrictions imposed by Bill C-11 are of great concern to the instructors, professors, students and administrators of these colleges and university as well as other colleges and universities across the country, as I speak to them as the official opposition's critic on post secondary education.

The legislation would require students to dispose of their digital class notes after 30 days, as well as destroy course plans and course notes by professors and instructors after 30 days of the completion of their course. Failure to do so would mean that these students would be infringing copyright legislation. This raises a number of red flags for me. How does this facilitate education?

With advances in technology, more and more students are accessing their post-secondary education in a variety of new ways. Through the use of technology, we can now offer programs in distance learning. This means that students in remote locations, or in locations where their course of choice is not available, can access courses and course material online. With the changes to the copyright legislation that are proposed in the bill, this course material will only be available for 30 days. After such point, the students will be required to dispose of the material at the end of their course.

This change would not only pose a problem to those pursuing their education online, but to virtually all students. Anyone who has been enrolled in a post-secondary education program or who knows someone who is enrolled in a post-secondary education program recently understands the shift in the digitization currently being made by professors and instructors at many institutions of post-secondary education. I recently attended three of them.

More and more instructors and professors are not only posting their notes, their course outlines and their lesson plans online, along with an array of the supplementary course materials, but they are also providing online forums that encourage the sharing of notes and the continuation of discussion once the lesson is completed for the day.

With the reforms proposed in this legislation, posts that students have put up would now have to be deleted or removed after 30 days. This would be problematic for many reasons, as many of my colleagues have mentioned.

First, this creates a modern book-burning regime, whereby countless sources of information and new thought will be lost forever.

Second, it creates a two-tired rights system between an analog and paper system versus a digital system, whereby students who keep written notes are not be forced to destroy those after 30 days and students who keep digital notes are be forced to destroy them. The mandatory destruction of course notes and material is detrimental to all students. Students routinely keep their notes to allow for them to go back and use these notes for further study and completion of related courses. Also, students keep these notes year after year to build a body of work toward getting their degree, certificate or diploma program.

I kept notes from my second and third year courses to use in my masters program and textbooks from my undergraduate degree for my masters program. Now I would not be able to do that.

Last, it creates an unfair barrier to students with different learning styles. This legislation does not allow for an exemption to organizations that provide educational resources in alternative formats to increase accessibility and success of those with learning disabilities. It discriminates against people with learning disabilities.

Related to this, many students are not capable of taking notes, for a variety of reasons, and have notes taken and provided to them by note-takers. Note-takers are of huge importance to the success of many students. Without these note-takers, post-secondary educations would not be accessible to these students. Note-taking also provides a small income to those who attend these extra courses and provide others with notes.

How would the notes of note-takers be affected by the proposed legislation? Would this not hurt them along with the students they provide the notes for if they have to be destroyed?

It is completely shocking and absurd that after 30 days students would not the right to access their own class notes that are made digitally. I have met with many people throughout the education sector and I have never once heard that the destruction of class notes after 30 days is a good idea. In fact, I have heard the complete opposite. This provision is unacceptable. It is backward thinking and it is needless. It would not protect any business model, but it would have a major detrimental effect on students and on education in our country.

Therefore, for the betterment of our society, that provision has to go. I implore the government to look at this and ensure that it is removed.

The other issue that is of great importance to me and my constituents is that of the digital lock. There is a very important right of creators to protect their work. One of the ways to protect this work is through digital locks. While the protection of a creator's work is extremely important, the anti-circumvention rights for content owners included in the legislation would create a situation in which digital locks would supersede virtually all other rights, including fair dealing rights for students and journalists. Because of this, a situation would be created where digital locks would supersede other rights guaranteed in the charter, such as changing format in case of a perceptual disability. It would also pose a very real danger that consumers would be prohibited form using content for which they had already paid. This would be problematic for many artists and many creators in my community.

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, I rise today to speak to Bill C-11, the copyright modernization act.

This bill is a redirection of Bill C-32 from the last Parliament, that contains sweeping changes to our copyright laws and it has received a huge amount of opposition. I have received hundreds of letters from my riding, which I will talk about later.

The copyright modernization act in this country is long overdue. There is no doubt about that. Changes need to be made. Unfortunately, my Conservative colleagues have taken the wrong approach on this and the result is that Bill C-11 is filled with holes and problems. Conservatives could have used the expert opinions heard in committee to help draft this legislation or they could have followed the findings of their own consultations in 2009. Instead, as we have seen many times, they ignored the facts, and they have also ignored the facts from the experts, and ended up reintroducing fundamentally flawed legislation. This does not reflect the best interests of Canadians and might end up doing more harm than good.

I have received hundreds of letters from my constituents and talked to a number of them over the phone. Here are some of their concerns. They say that their rights are trumped by an all-encompassing protection for digital locks and that the empty circumvention provisions included in Bill C-11 give too much power to corporate copyright owners to exercise absolute control over Canadians' interaction with media and technology. The letters say that they are concerned about the bill's unintended consequences generated by the broad protection for digital locks and they do not want to hand control of Canadian digital rights over to corporations.

I am going to read some of their names so their opposition to this bill will be recorded in this House. I received letters opposing Bill C-11 from: Christopher Madge, Tyler Goulding, Kyle Geddes, Nick Gailloux, H. Hinkel, Michael Leung, Philip Qumsieh, David Martin, David Lysne, Lance Hathaway, Reg Natarajan, Darya Smirnow, Quinton Weir, Bill Dagoe, Rod Kovacs, Amanpreet Bains, Vah Jazle, Luke Zukowski, Alex Weatherston, Michael Ross, Daryl Christensen, Owen Morley, Sally Hawkins, Colinda Lovely, Ross Smirnov and Gloria Maria Fredette.

These people are moms and pops, consumers, educators, professionals. They come from different backgrounds. They cover a very wide perspective in opposition to Bill C-11.

I responded to these constituents by telling them that New Democrats believe strongly that Canada's copyright legislation needs to be brought into a digital age, that we need to fix this. There is no doubt about it, from this side of the House, and we have pushed to make this happen. Members have heard the speeches we have made here this afternoon and no Conservative is speaking up on this particular bill. New Democrats share the concerns. I share the concerns that my constituents have shared with me and that is why I am speaking here today, on their behalf.

New Democrats believe that access for consumers and remuneration for artists are crucial to copyright in a digital environment. Rights that are guaranteed to citizens under existing copyright legislation should not be overridden. Furthermore, we oppose the digital lock provisions that go well beyond our obligation under the WIPO copyright treaty.

Another concern is that this bill offers consumers rights they will not be able to exercise. The blanket provisions for digital locks would allow corporate interests to decide what legal rights people may or may not exercise, which would ultimately hurt artists, educators, students and, of course, many other consumers.

Unless the government is willing to amend the digital lock provisions and restore royalty provisions for artists, frankly, I cannot support Bill C-11. There are measures within the bill that New Democrats cannot support and measures that we can support. We would like to see this deeply flawed piece of legislation improved and I request that of my colleagues opposite.

We would like to amend the digital lock provisions to make sure that there is a balance between the rights of creators to protect their work and the rights of consumers to access content to which they are legally entitled. We want to make sure that students and educators have fair access to works in the classroom. I encourage the minister and members of the government to listen to the concerns of citizens across this country. Educators, students, artists and many others are writing letters, signing petitions and speaking out against the glaring problems contained in this flawed legislation, Bill C-11.

There are many groups validating our position: the Writers Guild of Canada; the Society of Composers, Authors and Music Publishers of Canada; and over 80 arts and cultural organizations from Quebec, British Columbia, Ontario and across the country. I encourage my colleagues to listen to their concerns so that we can make amendments that make sense for Canadians and we can have a balanced bill that works in the best interests of Canada.

We need to create a fair royalty system for creators, one that supports the digital economy and the creation of creative content by Canadians. Copyright laws in Canada can balance the right of creators to be compensated fairly for their work and the right of consumers, educators and students to have reasonable access to copyrighted content.

We need to make our copyright laws better, there is no doubt. New Democrats are willing to work with the Conservatives to move this copyright bill into the 21st century. I urge my colleagues to listen to the suggestions that we have offered to amend the bill and make it better, so that we can move into the new digital age.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I listened very closely to the hon. member's presentation on the bill.

We all know that the government had serious consultations across the country on this bill over the last couple of years. This is the same bill that was Bill C-32 in the last Parliament. I happened to have been the chair of the special legislative committee that looked at the bill and heard from well over 100 witnesses from 75 different groups.

We heard time and time again that Canada was seen as an outlaw. Canada had become a haven, an enabler, for pirates to steal intellectual property. Investments have not been made in our country in terms of businesses that want to have protection for intellectual property.

Would the hon. member support getting this bill to committee, so that once again we could hear those facts and stop Canada from being a haven for outlaws and pirates that steal intellectual property, so that investments in the Canadian economy can be made?

[Manon Perreault, NDP, Montcalm, QC]

Mr. Speaker, it is difficult to try and understand an ill-conceived bill that does not really fix the problems in the current law. The Canadian government wants to reintroduce former Bill C-32 in the hopes of modernizing the Copyright Act. After listening to many expert witnesses speak on this topic in 2009 and after consultations, this government chose to table a catch-all bill.

It is true that Canada needs new copyright legislation, but this one is confusing. It contains too many major problems and, in certain cases, creates problems where there were none before. The government has managed to alienate intellectual property expert Michael Geist, the cultural industries, the Writers Guild of Canada and SOCAN, the Society of Composers, Authors and Music Publishers of Canada, to name just a few.

Reforming copyright law in Canada is not simple. It is quite complex. I greatly fear that the government's proposal is not the right solution. On one hand, the government is allowing for fair use for educational purposes, but on the other hand, it is imposing strict rules with regard to digital locks, allowing them to supersede all other rights guaranteed under the Canadian Charter of Rights and Freedoms. The Writers Guild of Canada has been very clear about digital locks: adding a digital lock effectively blocks the creators' current source of income and denies consumers the same rights they are guaranteed in other clauses of the bill.

The United States adopted similar legislation 10 years ago, and we have already seen the major shortcomings of such legislation in recent years. Their bill has reduced fair access to electronic resources, limited individual freedom of expression, legislated contradictory terms, resulted in unending and expensive legal battles against the public and has hindered innovation. Why is this government proposing a bill based on that same model? Canada should be a leader in copyright law instead of repeating the mistakes of its neighbours. Canada has to move forward and show leadership in this area, especially given the astonishing number of artists here who are brimming with talent.

The Minister of Industry and Minister of State for Agriculture announced that Canadians would soon have modern copyright laws that protect and help create jobs, promote innovation and attract new investment. However, quite the opposite seems to be true. Over 80 arts and culture organizations believe that Bill C-11 will be bad for Canada's digital economy. Howard Knopf, a lawyer who specializes in copyright, raises an important question. He says that this bill does not encourage innovation and that, in fact, it inhibits it. He wonders how making it illegal to bypass a regional code in order to watch a legally imported Bollywood DVD that is not available in Canada is going to encourage innovation.

The bill could seriously affect artists' incomes, even though they are already underpaid. A Conference Board of Canada report found that the cultural sector generated approximately $25 billion in tax revenue in 2007. That is more than three times higher than the $7.9 billion that was invested in culture by all levels of government in 2007. We must also consider that the average salary of an artist in Canada is $12,900 a year, which is a pittance. This bill will deprive artists of million of dollars in revenue and jeopardize their market share.

Canada can be proud of its artists and creators. Why does this government want to penalize them? Does the government think that, with this bill, it can download additional costs onto artists, who are already underpaid? How does the government expect to create new jobs like this? It would definitely be more effective to examine the issue of job creation separately rather than trying to pass this incoherent bill off as a job creation strategy.

The Canadian Association of University Teachers was clear: this bill needs to be amended. The NDP is proposing that we delete the clauses that criminalize the removal of digital locks for personal, non-commercial purposes. This would easily allow people who have a print disability to change the format of electronic resources so they can access them.

What worries me is the impact that this bill would have on people with a print disability, which includes those with learning disabilities and those who are visually impaired. The accessibility of resources is clearly not a priority for this government. It is important to remember that, last year, the Federal Court ordered the government to make its websites accessible to people with visual impairments. The court gave them 15 months to fix the problem and we note that the government has only three months left. This is an example of the lack of consideration that this government has shown with respect to the accessibility of resources. The hon. members will understand my concern about the plans for digital locks.

What also concerns me is that the government held consultations on the accessibility of library resources. For three years, the government consulted experts on the issue and listened to people with print disabilities describe their experience in trying to access resources.

I have the clear impression that the government did not listen to anything they said. This bill may actually create obstacles for people with a print disability in accessing resources. We have to protect artists' and authors' creations but we also have to be careful not to create problems for people with visual impairments. We must strike a balance; such a thing is possible. Unfortunately, the government did not do the research it should have when drafting this bill. It would be preferable to consider any amendments that could improve the legislation and make it better reflect what is at stake for Canadians.

Right now, Bill C-11 could have a number of unintended consequences, which is why it is important to consider amendments to improve the Copyright Act. One possible effect of the bill would be to increase the current levies on cassettes, DVDs and CDs, for example.

The bill could also create grey areas that would be difficult to manage and would require an endless, complex and inefficient list of exceptions. For example, the bill allows users to record television shows to watch them later but does not allow them to create a library of recorded content. What is the difference? How do we know whether two or three recorded episodes of a television show constitute a library or not?

Furthermore, is it illegal to transfer the music that we listen to on a CD player to a computer in order to listen to it on an MP3 player? According to this bill, the answer seems to be yes. However, according to the Conservatives, we do not have to worry because it is highly unlikely that the artist will sue us.

This bill creates all manner of difficult situations where judges will have a very hard time giving a ruling. This bill does not tackle the real problems faced by today's artists and consumers. In fact, it runs the risk of making things even more complicated.

I am asking this government to take our objections to this bill very seriously. I am asking the government to work with copyright experts who have identified serious problems with the law and to improve their proposals for modernizing the Copyright Act by taking into consideration users, artists and persons with a print disability.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, copyright modernization has been needed for a long time, especially to introduce the principles contained in the World Intellectual Property Organization treaties, which the Canadian government signed on December 22, 1997.

Since the comprehensive revision of the Copyright Act in 1997, the act has not been substantially amended because of the inability of previous governments, both Liberal and Conservative, to introduce a bill that would balance the interests of creators, the industry and consumers. Bill C-11, and its predecessor in the last Parliament, Bill C-32, are along the same lines. The government is continuing to stress access to creative content without providing adequate compensation for the authors.

The Conservatives took a stand from the beginning. They are firmly on the side of large content owners in the United States: the movie studios, record labels and video game developers. Unfortunately, consumers and creators will pay the price. Allow me to speak for a while about creators.

The Copyright Act is the legal foundation that ensures that creations can be reproduced, presented and communicated to the public while guaranteeing proper compensation for their creators. To weaken copyright by increasing the exceptions that allow people to use creations without authorization or any financial compensation is tantamount to preventing creators from earning a living from their trade. It also does away with collectives. To weaken copyright jeopardizes cultural industries by cutting off their supply of creations and by preventing them from developing markets that meet the needs of consumers while protecting their investments.

Bill C-11 introduces dozens of exceptions to copyright, including an exception for broadcasting and one for private copying. These exceptions give individuals and companies the right to use creations without compensating the creators. According to the Canadian Conference of the Arts, the ream of new exceptions introduced by Bill C-11 will deprive creators of over $126 million a year. The Union des artistes du Québec estimates that the cumulative effect of the exceptions will decrease creators' income by 70%.

We know that the arts and culture sector is an important economic sector. According to the Canadian Conference of the Arts, it generates spinoffs of over $46 billion and provides work for over 600,000 people in Canada. However, without creators, the arts and culture sector would not exist. Nevertheless, the government insists on strangling creators by increasing the exceptions and failing to propose any measures that would compensate them for the resulting loss of revenue. This will have a huge impact on creators' ability to survive.

It is appalling to see that artists and creators receive only a small portion of the $46 billion generated by their work. Artists in Quebec are the best paid in Canada. Yet, with an average income of $24,600, they make 25% less than the average income of the total labour force. Their income dropped by 11% in the past 15 years, and now the Conservative government wants to impose its unfair copyright reform on them, which would deprive them of tens of millions if not hundreds of millions of dollars a year.

Meanwhile, despite the recession, commercial radio stations reported a pre-tax profit of 21% in 2009. They spent only $21 million on acquiring reproduction rights, which is less than 1.4% of their $1.5 billion in revenues.

Businesses have a right to earn a profit. However, creators also have a right to make a living from their work, and we must create a more balanced copyright regime.

If exceptions to the copyright principle are introduced, we must find another way to compensate creators. For example, some groups in the cultural sector have proposed extending the private copying exception to include digital audio recorders.

Instead of considering this proposal, the Conservatives preferred to stick to demagoguery. For example, they talked about a so-called iPod tax, when there is already a similar levy on traditional recording media. Furthermore, they were the ones who propose to increase the existing levies on cassettes, CDs and DVDs.

The problem with Bill C-11 is that it shows, once again, the Conservative government's contempt for artists and creators. This bill joins a long list of initiatives that weaken the arts and culture sector.

For example, I remind members of the cancellation in 2008 of the Trade Routes and PromArt cultural promotion programs; the Conservatives' refusal to double funding for the Canada Council for the Arts; their attack on the CBC, an important catalyst for our culture and our identity; cuts to the museum assistance program; and Bill C-10, which would allow them to censor films deemed contrary to public safety.

Next to creators, consumers are probably the biggest losers in this bill. By giving unprecedented powers to major multinational rights owners, Bill C-11 will result in a situation where digital locks will practically trump all other rights, including fair dealing for students.

Bill C-11 could mean that consumers, for example, would no longer have access to content they have paid for. In one example provided to us, distance-learning students would have to destroy their class notes within 30 days of the course's end in order to comply with provisions in Bill C-11. That is completely absurd, especially given that these provisions are subject to fines of more than $1 million and five-year prison terms. The NDP believes that Bill C-11 needs to be recalibrated to take consumers' rights into consideration.

To conclude, I should point out that this bill does contain some positive elements. Artists, creators and cultural workers in general are pleased with the amendments to distribution rights, performers' moral and reproduction rights, the longer duration of protection for musical works and the recognition of photographers' rights.

Nevertheless, Bill C-11 is unbalanced because it clearly favours the corporate sector. It needs significant amendments to meet the needs of consumers and creators as well. We hope that the government will listen to the artistic community, which is opposed to Bill C-11.

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, it is an honour to rise this evening to speak to Bill C-11.

There is no question that Canada's Copyright Act is in dire need of an overhaul to reflect and to serve the needs and realities of artists, creators, rights holders and consumers in the 21st century. However, on too many counts Bill C-11 fails to meet the task at hand and for every problem that it attempts to fix, new problems are created.

We in the NDP and Canadians across the country have serious concerns about the bill in its present state, and we look forward to working constructively with the government to amend elements of the bill to address concerns that Canadian stakeholders have.

As we know, the bill was introduced in the last Parliament exactly in the state it appears before us today. This is not the first time the government has done this in the 41st Parliament. Indeed, since the election in May, it has introduced several bills that have been virtually word for word the same as the bills it put forward in previous Parliaments.

It is a bit early in the mandate of a government to show inertia, but from the recycling of bills, the omnibus crime bill, the ending of the long gun registry and the recycling of Bill C-11, this is a government that has begun to run out of ideas already. By limiting debate and railroading committees, the Conservatives have shown that they do not have any ideas themselves, and they sure are not interested in the ideas of Canadians who want to speak to the bill.

Notwithstanding the fact that the legislative committee looking at Bill C-32, as it was called in the 40th Parliament, met with over 100 witnesses who all spoke about the many serious problems that existed in the legislation, the legislation has not changed. What is more, we hear that the government is not interested in any more input from Canadians on the substance of the bill, and that is too bad. The government is missing an important and historic opportunity to craft a made in Canada copyright act that would stimulate innovation in digital industries and that would truly protect artists, other content creators and rights holders and at the same time balance the needs of consumers.

While the government does not seem interested any longer in what Canadians have to say about copyright, it certainly cares about the big boys in Hollywood and New York who want Canada to toe the line, and a deeply flawed line it is, that creative industries and consumers toe south of the border. The government's anti-circumvention position as it pertains to technological prevention measures, TPMs or digital locks, is a case in point.

I understand that if someone makes available thousands upon thousands of songs, movies, or pieces of software and is profiting from that activity, that person is clearly infringing on copyright for commercial purposes. Pirated DVDs sold on street markets or making semi-conductors specifically to allow gamers to hack their gaming platform to play pirated software are other examples. Someone is making money off of the blood, sweat, tears and creativity of artists and entrepreneurs, but the creators are not getting paid, and that goes beyond the regular practices of consumers to share and enjoy content.

However, much of the scare-mongering from major record labels and film studios unfortunately has tried to conflate the practices I have just described as the common practices of music and movie fans. This has led to the bizarre circumstances that we all know of, such as grandmothers being sued for downloading some tunes on the Internet.

The Conservatives could have crafted a Canadian-made solution to this very complex set of circumstances. Instead they caved to their U.S. buddies again. On the one hand, Bill C-11 finally recognizes common consumer practices which should be for the benefit of consumers and creators, such as time shifting, recording TV for later viewing, format shifting, as well as parody, satire and education as fair-dealing exceptions. On the other hand, all of this is moot if there is a digital lock on the content since that measure in the anti-circumvention measure that is attached to it supersedes all else.

What Canadian consumers win with one hand, they lose with the other. If there is a digital lock on a CD, they will not be able to make a back-up copy. If there is a digital lock on an e-book, they cannot change its format for use on a different type of e-reader. If there is a digital lock on a DVD, journalists will not be able to use part of it under the fair-dealing rights. It does not make sense that digital locks could supersede other rights that are guaranteed in the very same piece of legislation.

What is worse, not only do digital locks prevent Canadians from fully enjoying materials that they have legally purchased, they are also backed by incredibly unreasonable punitive damages with fines of up to $1 million and five years in jail for doing something that, if it were not for the presence of the digital lock, would be entirely acceptable. It is beyond logic.

While we in the NDP have an issue with the practice of suing fans and suing consumers, I would like to point out that it is only the very large multinational media outlets that could avail themselves of this kind of protection anyway. For example, members of the Canadian Independent Music Association as a block represent 24% of all music sales in Canada, which is larger than EMI and Warner music sales combined and greater than Sony music sales. This organization is made up of Canadian-owned companies, mostly small- and medium-size businesses which include record producers, labels, publishers, recording studios, managers, agents, and so on. In other words, they are the heart, soul and bones of the English language Canadian music business.

Few, if any, of the member organizations could pursue those who under C-11 infringe copyright through the courts. It would be cost prohibitive for them. While executives at the big multinationals slap themselves on the back at how compliant the government has been with C-11, the bill really does not help the independent music industry. It does not help the small businesses. It does not help the small entrepreneurs.

There is no question the music industry has gone through a very difficult time over the last 15 years. Therefore, it is all the more pressing that we craft copyright legislation that addresses the profound need to invest in new business models and innovation in the Canadian cultural industries. Instead, C-11 takes tens of millions of dollars out of the hands of artists annually by waiving the so-called broadcast mechanical tariff and by playing politics with the blank copying levy.

Prior to my election to this place in May 2011, I derived my primary income in the arts and culture sector as a musician, a songwriter, a producer, a composer, and a journalist. I can tell the House that it is a very difficult way to make a living and raise a family. Most in that profession work terribly long hours for many years and most barely earn a dollar. Having been lucky enough to make my living in the arts, I can say it is potentially a good way to get rich, but a lousy way to make a living.

With the arrival of the digital era many believed this would herald a new day for artists, a dawning of a middle class where it was not always a feast or a famine, where new revenue streams and business models would raise the average income for Canadian artists from below the poverty line to something resembling a decent living. That is what we should be striving for always. I think it is fair to say that that dream has largely gone unfulfilled. Writers still make more money slinging burgers than they do from their work. The average annual income of Canadian artists is under $13,000.

It is important to remember that the spokespeople for the multinational music and movie businesses are not speaking for artists. They are speaking for their shareholders. Prior to the digital revolution, prior to Napster, BitTorrent sites and Netflix, artists were still struggling. Not a lot has changed for artists.

Let us be clear. Artists have always done most of the work and received the smallest share of the return. It was the same before the digital revolution and it is the same now. That is too bad, and Bill C-11 only makes the situation worse.

We know that Canadians support the arts and are willing to pay for it, but this bill wipes out $20 million in annual revenue that goes directly to artists and rights holders by eliminating the broadcast mechanical tariff. Surely in the hundreds of witness testimonies on Bill C-32 the government heard that this would be detrimental to artists and rights holders. Again, the government is very in touch with the business interests of private broadcasters and big Hollywood film studios, but it is out of touch with Canadian artists and their audience, the Canadian public, who supports them.

Bill C-11 could have set an innovative and exciting course for Canada's cultural industries and workers, the artists who create the content, as well as Canadian consumers.

In its current state, Bill C-11 would fall far short of moving Canada forward into the 21st century. However, we look forward to working with the government on constructive amendments to fix the bill.

[Jean-François Fortin, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

Mr. Speaker, I have the honour to speak today to defend creators.

The massive use of new recording and copying technologies has caused major upheaval in the cultural sector. For years now, in sectors such as literature and the medical industry, for example, or even the gaming and software sectors, artists have been posting major losses in revenue, essentially because of piracy and illegal downloads.

Instead of lending an ear to the creators who make up the true foundation of Quebec's cultural industry, the government has chosen, once again, to try to impose a plan that will further reduce creators' revenues and benefit big corporations.

Quebec is unanimous in its opposition to the bill. Quebec's creators have condemned Bill C-32 and Bill C-11 with all their might, underscoring the inconsistency of Ottawa's position: “We recognize that music is worth something when it is copied to a CD, but it is worth nothing when it is copied to a digital audio recorder”. Quebec's cultural industry and its artists are against Bill C-11.

Stakeholders have called for such essential provisions as the imposition of royalties on Internet service providers, in order to compensate for the losses caused by illegal downloading, but those calls remain unanswered to this day. Yet people across Quebec are speaking in support of creators.

Only 8% of music revenues are given to copyright holders in the music sector, while Internet service providers keep 83%. Since cultural products are attractive to Internet service providers and represent a huge portion of their inventory, it is only fair that artists get a share of the revenues generated from distributing their works on the Internet.

The National Assembly has unanimously rejected the government's bill and called for substantial amendments. Organizations that are well aware of the consequences of adopting the provisions currently on the table, such as the Barreau du Québec and the Union des consommateurs, have protested in similar fashion. Even the Fédération des commissions scolaires du Québec finds that the damage caused to the creation industry outweighs the benefits the Conservative bill promises to provide to the education sector.

The Bloc Québécois believes that we must modernize the private copying system by taking into account the reality facing creators and other artists, so that they can receive fair compensation for their work. We must maintain the contributions coming from educational uses, as well as the royalties paid by broadcasters for ephemeral recording. Artists and other creators need this income. Without legitimate compensation, Quebec's creation industry itself is in jeopardy in the medium term.

By introducing a new copyright bill—which is a carbon copy of Bill C-32, a bill categorically rejected by creators—the Conservatives are once again showing their contempt for the vitality of Quebec culture. The Conservatives' bill forgets a fundamental principle: artists need an income to survive and to continue to create.

It is clear that this bill will make our artists poorer and will benefit big corporations. The Conservatives did not listen to any of the legitimate criticisms and are proposing amendments that would significantly benefit the software, gaming, film and broadcasting industries, at the expense of our artists' rights.

The Fédération des commissions scolaires du Québec said:

Accepting the principle that access to copyrighted works is synonymous with offering them free of charge would negate the importance of authors' contribution to our children's education, and weaken the school publishing sector.

The Union des artistes said:

The bill...does away with private copying and completely strips Internet service providers of any responsibility, when they already profit from cultural content free of charge. It exempts the education sector from paying copyright and kills reproduction rights.

To sum up, what are artists asking for? First of all, they want the government to implement a system of royalties on sales of digital audio players to compensate artists for their copyright. They also want legislation to prohibit illegal downloading of artistic creations, to amend the bill to ensure that educational institutions continue to pay copyright fees, to amend the bill to remove the YouTube exception, and to not limit pre-established damages. Artists also want to receive compensation that represents a fair percentage of the profits of Internet service providers, and to be able to distribute musical creations in exchange for compensation, rather than having them trapped behind a digital lock.

The Bloc Québécois would like to reiterate four important principles. First of all, it is not free. Artistic creations are not free. Creators, artists and artisans have created them and they deserve to be paid for their work, just as everyone else is paid for the work they do. We must encourage creation in all of its forms and ensure that artists are paid, that Internet service providers are assuming their responsibilities and that consumers can make copies for their personal use.

Second, we must support dissemination. Consumers must be able to take advantage of the increased accessibility provided by new technologies and artists must be able to take advantage of all these dissemination platforms. We must therefore promote the dissemination of artistic works on all existing platforms. Through its subsidy programs, the government must support dissemination via new media without negatively affecting conventional media, which are often where new works appear in the first place.

The third principle relates to increasing public awareness about the value of artistic creations. In order to protect against illegal copying, it is the government's duty to launch a public information campaign, targeted at youth in particular, to raise awareness about respecting artistic works and to explain that the law protects copyright.

The Bloc Québécois' fourth principle relates to cracking down on piracy. The new copyright legislation must also address illegal copies made by people for commercial purposes. The law should come down hard on professional pirates and known repeat offenders.

In short, the Bloc Québécois and artists want a bill that protects artists' copyright and pays them for their work. Helping our artists is another way we express our culture and the concept of our Quebec nation.

That is why the Bloc Québécois cannot support the bill in its present form.

[Megan Leslie, NDP, Halifax, NS]

Madam Speaker, as we know, copyright is a complicated issue and features competing demands from different stakeholders. We have artistic, academic, business, technology and consumer rights that we need to balance.

I am pleased to speak to this bill because just a few years ago I did not actually know very much about copyright. I was invited to participate in a panel discussion and a movie viewing. I was invited by some Dalhousie law students and some Nova Scotia College of Art and Design, or NSCAD, students, law students and art students working together to shed some light on the issue of copyright.

They had a screening of RiP, a remix manifesto, which is a great Canadian documentary featuring the artist Girl Talk. Girl Talk does a lot of work doing mash-ups, putting different songs together to create a completely new song. There is a big question around whether Girl Talk actually violates copyright law. I threatened to do a mash-up in the House today but I will leave that to Girl Talk.

However, I thank the students at Dalhousie and NSCAD for holding that panel because it enlightened me on the issue of copyright and made me realize how important an issue it is to the riding of Halifax, as well as across Canada.

This bill, as we know, was brought forward in the last Parliament as Bill C-32. Despite a lot of feedback from stakeholders and community organizations that the bill did not strike the right balance, it has been reintroduced and it is exactly the same bill as before. The NDP believes that copyright legislation needs to be modernized and that it is long overdue, but this bill has a lot of errors, some glaring omissions and, in certain cases, it actually creates problems where none existed before. The NDP will work to try to amend this bill to ensure it reflects the best interests of Canadians.

The NDP believes that copyright laws in Canada can balance the rights of creators and their right to be fairly compensated for their work, and the right of consumers to have reasonable access to copyrighted materials. We will look for all possible amendments. This is what committee is for. It is to bring people forward, talk about what the solutions are and to look at amendments. We will look at all possible amendments to the bill that will create a fair royalty system for creators because, as it stands, this bill would wipe away millions of dollars in revenues for artists.

As I mentioned, the constituents of Halifax have a lot at stake with this bill. First, there is a very high student population in Halifax. Students are the creators and owners of copyrighted material in their articles, essays and works of art, but, at the same time, they are also consumers. In order to study and learn, students need access to the copyrighted works of others.

I met with the Canadian Federation of Students and it pointed out that this three part perspective of use, creation and ownership of copyright gives students special credibility when it comes to the struggle for fair and balanced copyright law. I met with CFS representatives and they have reinforced to me how much any copyright reform needs to strike that balance. It needs to be fair and balanced.

With so many students in my riding, it follows that we have libraries. We have law libraries, medical libraries, archives, university and college libraries and public libraries. I have met with many librarians and they have told me that they need balance. If we are looking at this issue, no matter where in Nova Scotia or Canada we are, balance is needed. Most of the librarians I have spoken to have pointed out the fact that this legislation does not get the balance right, especially when it comes to digital locks.

As we have heard in the House, the bill would create powerful new anti-circumvention rights for content owners. I want to take a second to point out that I said “content owners”. That does not necessarily mean creators or artists. It means owners. Often the owners are not the creators or the artists themselves.

The rights for owners prevent access to copyrighted works and they can be backed with fines of up to $1 million and five years in jail. That would create a situation where digital locks could actually supersede all other rights, including charter rights. If we look at people being able to modify the way they can see material because they have a visual impairment, that penalty would impact someone who has an actual charter right to view this material, which is not what anyone would intend to happen.

What does this mean? It means there is a very real danger for consumers that they could be prohibited from using content that they have already paid for. Sometimes the format just needs to be changed. It has already been paid for. There should not be anything wrong with that.

The legislation is really important to people in Halifax because my community is rich with artists and creators. We are home to movie and television studios. We have video game developers, song writers and playwrights, authors, designers, sculptors and dancers. It is really incredible to think that there could be that much talent in one small city, but we are a hub of creativity and innovation.

In being elected by those people, I have been sent to the House to protect their rights, to protect their ownership interests in their creations and to stand up for fair compensation for their work. We will bring forward all possible amendments to the bill to create a fair royalty system for artists because, as the bill stands now, it would wipe away millions of dollars in potential revenue for artists.

The bill would grant a range of new access privileges but it would not increase opportunities for remuneration for artists. This new playing field would profoundly affect the ability of artists to survive, something that all of us have seen first-hand in our ridings. Artists and creators make our communities worth living in. They deserve access to fair compensation opportunities for their work. Without those opportunities, we risk destroying our creative communities altogether.

In the bill, there is a long and complicated list of exceptions, and I do not think it adequately recognizes creators' rights. In fact, it would create new ways for consumers to access copyrighted content. We talk about balance and we are creating new ways but at the same time we are not providing new avenues to remunerate creators for their work.

The no compromise provisions in the bill would provide sweeping powers to rights holders that would supersede all other rights. If enacted, the bill would ensure that artists could not access their work despite the fact that they own it. In the example that has been shared with me, if people are studying abroad or doing long distance education they cannot keep those materials. I would go so far as to say that it is draconian and inappropriate to ask people to destroy class notes within 30 days of the course ending. This is knowledge they have learned. They have paid for this material. It seems absurd that they would need to destroy them at the end of the course.

What are the propositions? We really need to come together at committee and hear from people who are impacted by this legislation. There is a lot of opportunity to do some very good work and modernize the bill while balancing the rights of creators and the public.

I look forward to the bill getting to committee to see what happens. I am very hopeful that the Conservatives are listening and that they will take feedback into account and work with the NDP to bring forward good, solid amendments that will benefit everyone.

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Madam Speaker, thank you for giving me the floor.

I have the honour of rising today in the House to debate Bill C-11. As we all know, the purpose of this bill is to update the Copyright Act, which has not been changed in a number of years, in order to take the new digital technologies into account. We commend the fact that the government has finally decided to address this matter and we support the efforts to update the Copyright Act if they are geared toward justice and fairness.

The government could have taken this opportunity to resolve copyright-related problems, but instead it has once again demonstrated its narrow ideology by introducing a bill that satisfies American interests more than Canadian interests.

Last year, during the study of former Bill C-32, more than 200 submissions and proposals were made in committee, and each party offered criticism to improve this bill. These submissions and proposals gave us a better idea of the needs of our authors, creators and consumers. Unfortunately, the Conservatives have once again ignored Canadians. They are so arrogant as to brag about not having made any changes, since they prefer to get their orders from Washington.

I could ask why the Conservatives are ignoring these many in-depth consultations that were held in Parliament, but we already know the answer: for the Conservatives there is no room for reason, facts and evidence. This government insists on introducing these bills despite the many voices that speak out against them every time. This bill has a significant number of deficiencies that fail to serve either users or the authors.

Let us begin with the new rights and new exceptions with regard to fair dealing, especially for the purpose of education. A number of writers and publishers are strongly opposed to these exemptions, as they fear their works will be reproduced and distributed freely to students, which will result in lost income for them and constitutes, to some extent, an expropriation of their rights.

This is particularly problematic in Quebec and various francophone communities in Canada, given that, because of demographics, there is only a small pool of potential buyers.

Of course, a number of academic institutions support education exemptions because it will mean considerable savings and they will be able to use audiovisual products more often to facilitate student learning.

Creators live off their works and should be compensated when these works are used. A balanced bill would take the needs of creators and educational institutions into account, but this bill is not balanced and in no way compensates for the losses that certain authors will face. We are also asking the government to help artists adjust to the new digital reality and for transitional funding to help artists compensate for lost revenue resulting from the abolition of ephemeral recording rights, for example.

Another provision that we find extremely worrisome concerns digital locks. Bill C-11 introduces new rules for reproducing copyright-protected works for personal use but negates those rights by making it illegal to bypass a digital lock.

Someone who buys a DVD and wants to transfer its contents to a digital tablet, such as the Canadian PlayBook or the American iPad, will not be able to do so if the DVD has a digital lock. As we all know, various electronic media are making increased use of these locks to fight piracy and theft.

Therefore, the use of purchased works will be limited and buyers will be considered criminals if they break the lock in order to copy the work for personal use. This government will punish people who have legally obtained a work by limiting the ways they can use it and making criminals of those who want to use their legitimate purchase as they wish.

However, pirates have full use of the works they obtain illegally and will be considered just as guilty as someone who breaks a digital lock. Knowing how easy it is today for Internet users to illegally download works, pirated copies may appeal more to young Canadians than copies limited by a digital lock.

For example, why would a young person want to purchase a DVD if he cannot legally use the content on other platforms, whereas he could use a pirated copy, which is easy to obtain, as he sees fit? Bill C-11 is contradictory because, on the one hand, it allows copying of copyrighted material for personal use and, on the other, it prevents users from breaking locks that prohibit copying.

The provisions of this bill concerning digital locks are among the most restrictive in the world and cancel out the new personal use rights. This will ensure that, once again, Canadian users will be the losers. We must allow digital locks to be circumvented as long as it is for lawful and personal use.

It is not just political parties who are opposed to this bill. The Union des écrivaines et des écrivains québécois, the National Assembly of Quebec, the Fédération des commissions scolaires du Québec, the Association des libraires du Québec and many other groups have all publicly raised their concerns about this bill. As usual, this government is stubbornly ignoring Canadian interests. It prefers to address American interests under the pretext that it can do as it sees fit because it has a majority.

In fact, diplomatic cables clearly show that the Conservatives want to impose these restrictive measures as a result of pressure from the Americans. Once again, the Conservatives have decided to kowtow to the United States, which may try to impose its will on Canada more and more frequently, knowing that Canada will do what it asks without any opposition. It is high time that this government understood that it was elected by Canadians, not Americans, and high time that it started standing up for our people's rights rather than for the interests of American industries.

Many artists also spoke of their desire to have a resale right added to the bill to allow them to claim the revenue that they are currently losing. The government did not take this request into account, demonstrating once again that it does not care about the real and legitimate needs of creators, unless perhaps those creators are American.

Yes, the Liberal Party supports the modernization of the Copyright Act, but not in the form in which it has been presented to us today by this government. The bill is not balanced and does not pay enough attention to the needs of creators and consumers. The Conservative Party should have taken into account the many consultations pertaining to Bill C-32, which were held during the previous Parliament, rather than reintroducing an old bill that has not been changed despite the many amendments proposed. This government must stop ignoring the interests of Canadians and start standing up for them. It must stop doing nothing and amend this bill in order to address its many shortcomings.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Mr. Speaker, I thank the hon. member from Longueuil for sharing his time with me.

I rise to speak to Bill C-11. It is a complex and quite honestly dumbfounding piece of legislation. It attempts to strike a balance between the interests of consumers and stakeholders.

The need that the bill is meant to address has been lost in the haste of having legislation in place by an arbitrary date. However, it must not only answer immediate concerns but also future concerns of stakeholders. In its haste, the government is missing a golden opportunity to provide support for Canada's creators and in fact is abdicating its responsibility to them.

In this era of ever-evolving, growing and fluid digital integration of communications and entertainment, it is even more important that the bill strike a balance between the needs of Canadian consumers and their ability to access and enjoy artistic content and the undeniable rights of the creators of that content. It is imperative that a sound legal framework be established to protect the rights of creators and other stakeholders.

The works of artists can inspire, comfort, educate and on occasion help us express that which we are unable to express on our own. In addition, those works fuel the heart of a massive economic engine that drives $85 billion into the Canadian economy and provides 1.1 million jobs, yet those works still are grossly undervalued. The bill underlines that fact by putting business, consumer and user rights ahead of the rights of the creators of those works.

The nature of copyright is better expressed in the French language, “droits d'auteur”, meaning author's rights, the right of the author, the creator. That right gives artists the ability to determine how their works will be used. Sadly, this is conspicuously absent from this document, or at least is addressed minimally.

As an artist, and an advocate of the bill since its previous incarnation as Bill C-32 through to its present state, I have discussed the issue at length. When meeting with individuals and members of organizations in my constituency office as well as here in Ottawa I hear the same concern expressed. Although they agree that new copyright legislation is needed, they all ask why money is being taken out of the pockets of artists and why their needs are not being addressed.

Indeed we have entered new territory and, as with anything new, there is always adaptation required. For the first time in history the types of physical controls that copyright holders held in the past are gone. Entertainment and academic works are accessed more easily and therefore are less protected.

What protection mechanisms do artists have? There are a few cursory exemptions from prosecution or civil action for consumers and their advocates. In exchange a rather dizzy and confusing series of vague obligations are offered, one of which includes shredding their class notes. The artists and cultural communities are offered lip service with regard to the principle of equitable compensation for their creative works. They are also offered an inconsistent and frankly scary approach toward the protection of those works as well as compensation for them.

In its present form, Bill C-11 is an unequivocal failure. It outright fails to satisfy the two most important benchmarks we as parliamentarians use for evaluation. It fails to establish clear, universally understood rules for consumers. It also fails to ensure equitable enforceable compensation rules for those people who dedicate their lives to the creative enterprise.

Many of my colleagues have remarked on the many practical problems of this law, some of which we in the official opposition are committed to remedy through good faith dialogue at committee stage. I hope my colleagues across the way will work with us on this approach with purpose and in the spirit of openness.

After a long career in the arts, I came to Parliament as a voice for those artists and a voice for the constituents in my riding who are artists. From my perspective, this law's greatest weakness is its complete failure to extend or acknowledge the vital and current compensation framework upon which so many artists, writers, musicians and creators depend for their livelihood.

During the 2008 federal election, the Prime Minister made his feelings with regard to artists clear. We took exception to that, particularly in my home province of Quebec. The bill does little to show any change of heart regarding the Prime Minister's view. The images provoked by his words are misleading and undermine the artistic community, which contributes far more to this country than it receives.

Typically, today's Canadian artists continue to focus on their creative works more than where their next meal will come from. The typical artists in this country have a median income of under $13,000, yet the government sees fit to take $30 million a year out of their pockets.

That party's characteristic cynicism, for which it grows ever more famous, shows the value the members of the government have for artists.

I look at the discussion regarding digital access as a reminder of the Wild West days when our forefathers came to this country and were given pieces of sticks and told to go out and stake their claims. For some reason, many people feel that the Internet offers that same opportunity. However, like our forefathers who staked their claims, there are people who own the rights to works of art found on this worldwide entity called the Internet.

The Internet is a tool. It is a medium through which we can access all sorts of information. However, if we walk down Sparks Street and the HMV doors are open, that does not give us the right to walk into HMV, put a CD in our pocket and leave. We must provide compensation, which is what the bill fails to do.

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

Madam Speaker, first of all I hope that my hon. colleague is going to take a hint. What we are trying to suggest here is that there are some changes required.

A minute ago and earlier today I listened to him talk about how we have listened to so many people and have received so many witnesses and so many written submissions, but what do we see in Bill C-11? Can he tell me that everything that has been suggested under the Bill C-32 legislative committee is actually being considered for the final version, or did we do a tape erase and start from zero? Are we going to go through a sham exercise that will not change a darned thing?

If he wants to talk about listening to Canadians, he has not done that yet.

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

Mr. Speaker, I am pleased to rise and speak to this extremely important copyright bill. When I was the science and technology critic before the last election, I had the pleasure of sitting on the committee that addressed this extremely important issue which, as we know, goes back a long way.

Canada, of course, signed on to the WIPO treaty back in the 1990s. We all know that it has been a long tortuous road with respect to modernizing our copyright bill. We in the Liberal Party attempted to do so; unfortunately, with changes in government and other things, it did not happen, so here we are today with Bill C-11.

I participated in a legislative committee before the election when the bill was known as Bill C-32. As has been pointed out many times today already, there is no change in the wording of Bill C-11 versus Bill C-32.

This is surprising to me. In reality we listened to a very large number of witnesses from many different fields. They represented what I would call the three main stakeholders: industry, the producers of video games, movies, music sets, electronic books and those kinds of things; consumers, all of us who buy these copyrighted materials; and finally the third group, the artists. There are a great many artists who are ultimately the producers of the works that we buy.

We heard from a large number of these people, and from other groups in the education field, as well as librarians, photographers and a great many people who have an interest in modernizing the copyright law.

When we finally saw Bill C-11 as it was presented just recently, we discovered, as I said, that there had been no changes whatsoever to it, yet there were some very compelling testimonies presented by the witnesses who appeared earlier this year. Personally I would have thought, and I had hoped, that the version we would be dealing with today would have had some changes put into it.

In relation to many areas that needed to be modernized under copyright, I would say this is a good bill, and the Liberal Party is ready to support those aspects. However, there are also a number of areas on which we feel the points brought up by witnesses were valid. We feel there should have been consideration given to changing it to make it a more balanced copyright bill. Unfortunately, that did not happen.

I have to say that the thought went through my mind as to whether there had been any intention to listen to any of the witnesses who had appeared. So far, on face value, I would have to say no, because nothing has actually changed between Bill C-32 and Bill C-11.

Although we will be going to committee with Bill C-11, my question is this: are we going to end up with exactly the same bill at the end of that process, or is the government really willing to actually listen to some of the inputs? That is my concern.

This morning the heritage minister said that they did not change anything in Bill C-32 when they made it Bill C-11 out of respect for all those witnesses.

Now, there are two ways to take that, and I am not quite sure what he meant. One possibility is that the Conservatives have stored up the witnesses' input and at the end of the process will make changes. The other is that they are really telling us that we will go through this charade for whatever amount of time Bill C-11 will be debated in committee and otherwise, but will end up with exactly the same bill that was presented a while ago. We therefore introduced an amendment this morning.

As I have said, there are a lot of good things in Bill C-11 that we fully support. For example, I come from a riding where there is a major video game presence. It is a large industry. Canada is a leader in this area, and I support the desire and the need to protect against piracy. That is very important for Canada. That is an example of something we support entirely.

We also have no problem with certain other things, such as some of the fair dealing provisions that would deal with parody and satire.

However, there are other areas where valid points have been brought up. The first one, of course, has to do with digital locks.

Our point of view in the Liberal Party is that if people buy a copyrighted product such as a piece of music, a video, or an electronic book, download it and pay for it legitimately, then they have bought the right to that product. If they choose to transfer it to another device, again for their personal enjoyment and for a non-infringing personal purpose, then we do not believe they should be forbidden from doing that, even if it has a digital lock on it. That is fundamental in our position. It is because those people have paid for the product, and it remains a product that they want to use for personal purposes.

The argument presented by the minister of heritage is that if it has a lock on it and the buyers intend to transfer it, they have a choice of either breaking the law or not buying the product. We do not think that is the way we should approach this particular issue of digital locks, nor do the majority of Canadians.

The second thing has to do with fair dealing and the definition of fair dealing. As members know, “fair dealing” is defined under a number of criteria in the Berne Convention. The particular issue that was probably the most contentious was bringing education under fair dealing. When that happened, we in the Liberal Party and a lot of the witnesses asked for a definition of “education” under “fair dealing”. In fact, we proposed, constructively, to codify a number of criteria established by the Supreme Court that would establish whether fair dealing had been infringed because, as members know, if people feel that fair dealing has been infringed, the onus is on them to get themselves a lawyer and say that there was an infringement of the fair dealing with respect to the use of their copyrighted material.

A number of criteria were proposed by the Supreme Court. We believe these are good criteria and that they should be codified. We made that suggestion during the hearings for Bill C-32; a lot of the suggestions were listened to and a lot of people mentioned this same idea, yet we do not find it in Bill C-11. That is something else we find very preoccupying.

Finally, there is the issue of transitional funding to help artists, particularly if we look at an example like the music industry. In relation to this industry, we recognized a number of years ago that artists should be compensated when their music is copied. As members know, we established a levy on CDs and cassettes, and for a while this gave a very good compensation. It got up to about $28 million annually. An organization responsible for sharing that money out among artists did so, and that was accepted by the artists.

Of course, CDs and tapes are not used very much today for recording musical works, so we suggested that an alternative should be put in place, and we still believe it is important to address the requirement for fair compensation for artists who produce works and whose works are copied to other media.

That is the why we proposed this reasoned amendment today. We hope that the Conservative government, as it listens to the debate here and as it goes to committee, is sincere in paying attention to what witnesses say and to all the written submissions.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, I will be sharing my time with the member for Westmount—Ville-Marie.

Copyright legislation, the issue of digital locks and Bill C-32 have accompanied me from the beginning of my political journey a couple of years ago.

I live in a riding that has a large population of post-secondary students, and when I said I was running for the nomination in the riding, many of them wanted to talk to me about Bill C-32 and the concerns they had over the digital lock provisions in that bill. These are students. These are text savvy people. Many of them are the next generation of artists and creators. The bill is important to me.

Copyright is at the heart of how our society treats creators, artists, musicians, and composers. It is very important that we recognize their contribution, that we value what they have created, and the value that it brings to our society.

My brother is one of these people. He is a musician. He is a jazz saxophonist. He teaches for a living. He plays. Sometimes he records. It matters to me a lot that our artists are treated fairly.

However, every time technology changes there is a need to modify copyright law. A very simple example of that is photocopying. When it becomes much easier to copy a book, we have to think about what that means for protecting written material. When it becomes very easy to copy music, we have to think about how to adjust our copyright laws. One thing that has happened in the past to deal with that adjustment is that a levy has been imposed on the sale of cassettes and CDs to compensate artists for the work they have done.

Now we are in an age where technology has changed again, very radically. I am sure that when I was a young person, nobody had on their desks all the things I have: a phone, a couple of computers, and so on. Technology is all around us and we can copy all sorts of digital material from one device to another.

It is very important that the legislation before us is technology neutral. Probably the best way to talk about technology as far as this legislation is concerned is just to ignore all the technology in front of us and just think about all the copies of digital materials in the cloud, on the Internet. We do not even have to think about the hardware in front of us.

It is important to have digital locks, since a lot of copyrighted material, material that is created by our artists, writers, musicians, is in the cloud, but we can improve this legislation as it pertains to digital locks.

The students I met with very early on in my political career were very quick to bring this to my attention, which is that digital locks should not trump the other rights that are being given to consumers in this legislation. Consumers should have the right to buy material and to copy it for their own use. Students should have the ability to have copies of materials so that they can learn.

A really good example of that is something my brother, the musician whom I want to get back to, related to me. I really did not appreciate it, but when he explained it to me, things suddenly became very clear. My brother says that the training, education of musicians today, as compared to, say, 20 years ago, is radically different. The reason why it is radically different is because young musicians today can listen to a lot more music than they could have 20 years ago, a lot more variations of music from around the world.

That is because of the Internet. Not only does the Internet allow a lot of different kinds of music and creative things to be brought to people, but a lot of creative people can communicate what they have created to others around the world through the Internet. This is a tool for the next generation of creators and artists and people who are creating.

This is really something special that has changed how artists, musicians and writers are being trained and educated. They are really able to immerse themselves in what is happening around them and what has been in the past as well.

I think it is very important that we take a bit of time. I hope this happens in committee, if the bill goes to committee. We must be more careful about defining fair dealing and education. I am not so sure what my brother related to me, this training of musicians which is not necessarily in schools and not necessarily in a formal setting, if that is something that would be properly considered in a definition of education.

As far as fair dealing is concerned, there are definitions that we could incorporate into the bill. The Supreme Court has made rulings about what fair dealing means in certain cases and has established certain criteria. These criteria could, I understand, be incorporated into the bill.

That is why in the recent amendment that has been brought forward by my party there are two provisions. One is to first of all uphold the rights of consumers to choose how they enjoy the content that they purchase, to avoid the overly restrictive digital lock provisions that would seem to take away the rights that are being granted consumers in this legislation, which does not make sense. The second is to take some time and write down a clear and strict test for fair dealing for education purposes.

There is a lot of controversy over this legislation. There are people for it and against it, and it is probably because, in my humble opinion, the legislation could be made clearer. Forgive me for throwing out this example, but I often find that in my experience as a scientist, if people disagree about something we should really sit down and look at the numbers and write down the equations, put everything on the table and define the terms more carefully. Often, in the field of science and research a lot of disagreements melt away when definitions are made precise and people look at actual numbers and hard data.

It makes sense to me, from my experience, that if we were to take some time and write down clear definitions of fair dealing and education in the exceptions to the copyright protections in the legislation that we could probably resolve some of the controversy around the legislation.

The third provision in the reasoned amendment is that there are certain streams of revenue that will be affected by this copyright legislation. We should take some time and think about how the streams of revenue will be affected and think about providing transitional funding for artists who adapt to the changes and the loss of some revenue streams that would be caused by the bill.

These are the reasons why the provisions in the reasoned amendment make sense to me. That is why my party and I are supporting this reasoned amendment.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I will be sharing my time with the member for Manicouagan.

We are very pleased to see that this government wants to take action to modernize the Copyright Act. These changes are long overdue. We are open to making changes. However, we would be even more receptive if the result was a balance that would benefit all stakeholders. The problem is that, contrary to what the government is saying, there is no balance in Bill C-11, as was the case for its predecessor, Bill C-32.

This bill will have fairly significant repercussions for authors, artists and consumers. Once again, despite the fact that the government says that the bill is balanced, we see that various associations and very important organizations representing the stakeholders do not concur.

First, let us talk about authors. We believe that they stand to lose the most with Bill C-11. The majority of writers' associations were opposed to Bill C-32 and now are opposed to Bill C-11, and with good cause. I would like to talk about one organization in particular, DAMI©, which is based in Montreal. DAMI© stands for Droit d'auteur Multimédia Internet Copyright. It is the umbrella organization for 13 professional associations of artists, authors, performers and copyright collectives. DAMI© represents 50,000 cultural artisans who are members of these 13 associations. What did DAMI© have to say about Bill C-32, which, I repeat, is now Bill C-11, currently under review? It had serious misgivings about Bill C-32, especially because of the free use of works protected by about 40 exceptions, half of which are new exceptions being made with respect to the current act.

I would like to read an excerpt from the DAMI© submission on Bill C-32, which, I repeat, is very pertinent because this is the same bill now being studied as Bill C-11.

Thanks to this bill, teachers will be able to use protected works [we are obviously talking about education] in their classes without asking permission, and they will be able to reproduce their course work to broadcast it by telecommunication in the context of remote or distance teaching. They will also be able to reproduce works in their totality for the purpose of display on interactive whiteboards or computer screens. Schools will no longer have to pay royalties to record news programs for pedagogical purposes, to present films, or to perform plays, for which they will be able to reproduce the sets, costumes, and lighting designs created by professional artists. This is a total expropriation of the intellectual property rights of creators in the educational sector. It is as if the government had declared that from now on literary, theatre, musical, and artistic works will be considered collective property.

This is in reference to education, but another important point to consider, especially at the university level, is the issue of the academic book market in Quebec. It is no secret that Quebec is an island of 7 million francophones in a sea of over 300 million anglophones in North America. The American book market serves primarily the Canadian English-speaking market. We need a strong academic book market in Quebec to be able to protect our culture, so that we can adapt or examine various issues—such as the economy, philosophy or other university subjects—from a Quebec and francophone perspective. This book market is small compared to the English-speaking American and Canadian market. It must fight against assimilation and against greater integration of these books that are quite often translated into French, but do not reflect Quebec's point of view or a francophone perspective, even in Canada.

This bill could end up further weakening the academic book market in Quebec—for university texts, for example—and creating even more problems for this market. The industry in Quebec will have to face more challenges if it wants to survive.

What justification will be given if the across-the-board use of photocopying is permitted or there is no adequate compensation for the authors of these books, as mentioned by DAMI©? What motivation will Quebeckers, and francophones across Canada, have to write a book that truly reflects the francophone and Quebec philosophy, vision and point of view? There will be no such books in the future.

This bill represents a real threat to an industry that is living on borrowed time in Quebec. That is why we are calling on the government to work with us to establish greater balance in this bill and ensure that all stakeholders benefit, not just the companies that own intellectual property, which are heavily favoured at this time. In response to our government colleagues’ comments, this to a large extent explains why they have the support of John Manley, among others, and it will come as no surprise that he is the president and CEO of the Canadian Council of Chief Executives. However, they will not have the support of authors' organizations, artists' organizations and copyright collectives.

Nor will they obtain, despite what they claim, the approval, the consent or the support of consumer associations. As it stands, the bill does not permit consumers to make backup copies or transfer the documents they have purchased—content for which they have paid and enjoy certain consumer rights—to other formats. The Writers Guild of Canada, among others, raised this problem. This organization stated that the only option that Bill C–11 gives creators is the addition of a digital lock, which has the effect of impinging upon current revenue streams for creators and creates a defect in the bill by depriving consumers of the very rights that are guaranteed them elsewhere in the bill.

The government said it was giving copyright owners a tool for developing and marketing their products and earning an income. It said it was protecting creators against acts of piracy. Although it is true that digital locks worked or can work when it comes to software, they are too restrictive and very unpopular when it comes to entertainment content. They risk being discriminated against by market rules, as they were in the case of music. Digital locks do not allow for progress and do not help defend the interests of consumers and creators. At best, digital locks will simply block current sources of income for creators.

This income is nevertheless very important. If this bill passes in its current form, authors, artists and cultural artisans could lose more than $125 million in income a year. That is why we are calling on the government to work with the NDP in order to amend the bill. We welcome the desire to modernize legislation, especially since this modernization has been a long time coming, but it has to be done properly. Unfortunately, Bill C-11, as currently worded, does not benefit all stakeholders equally. We want to work with the government to ensure that everyone benefits and to modernize the Copyright Act in a coherent and lasting way.

[Réjean Genest, NDP, Shefford, QC]

Mr. Speaker, I am pleased to rise in the House to speak about this bill.

This is an opportunity for me to wear several hats: I am a member of the House of Commons and an author. My occupation as a gardener led to me write several books on the subject.

I would like to say that the work of an author requires perseverance, discipline, determination and confidence. It is mostly solitary work. There is so much work to do that a book like mine can take three or four years to be published.

Copyright is a way of expressing respect for the author. Once again, I do not see the rights of the author in this bill. There is talk of respect but I do not see dividends for authors. As a producer and an author, I created and produced over 500 episodes of a gardening show on community television. For several years, I found it very enjoyable but that ended when my work was copied by others in both the format and the approach. There was nothing I could do. As an author, I created a gardening website of over 1,500 pages, which I have been maintaining since 1998. When you publish something on the Internet in French, you are speaking to the entire Francophonie. There too, my work was copied countless times and, as an author, I had no recourse.

In the government's bill, I do not see any possibility of recourse for authors or any way for authors to obtain payment from the party that copied their material. Various people will get a slap on the wrist but, in the end, the author's work has been copied and he or she has not been reimbursed. I know something about it. On the Internet, people often wrote to me to tell me that my pages had been copied and posted in various locations but I really could not do much about it. I even saw a world horticultural encyclopedia containing complete passages from my work. I had to exert pressure to have my work removed. As an author, I also had no recourse. In the bill, I see ways that the government could help an author to have recourse.

Authors earn a small income, often below minimum wage, but I do not see anything in the government's bill that would help an author whose work has been copied. There is a project in Quebec, somewhere in Montreal or elsewhere, that has been making headlines for years. Everyone knows that it was copied but nothing has been done. If the government wanted to take responsibility, it would find a way to make a system available to authors and legal experts whereby authors could be reimbursed by the parties who copy their work.

I am an author and I have written books, 10 of which are ready to be published. I am waiting to have the means to publish them, because the dividends paid to authors for the publication of books are between 5% and 10%, and they are paid out a year and a half later. In addition, nothing can be confirmed.

Personally, I plan to self-publish my books. Once again, the government has all kinds of legislation that helps publishing companies, but nothing that helps authors to self-publish. When will this government start taking care of authors and thinking like an author? Singers and people who record music were forced to create their own labels. Why is it that this government refuses to help people who want to self-publish? I do not understand.

Is there anything more logical and simple? We want to help people, but we want to penalize pirates and other offenders. Penalizing pirates will not help authors; it is a question of finding ways for authors to get what is owing to them.

Bill C-11 is identical to Bill C-32 from the previous Parliament. Artists from Quebec came here to Parliament Hill. Let us not forget their demands. This bill does not give artists any dividends. Consumers purchase songs or various things on the Web and copy entire pages of creations from the Web, but nothing goes to the artists. No dividends at all. When will this government bring forward a serious bill for authors, instead of just focusing on building prisons?

Indeed, it seems the government has big plans to increase the number of prisons in this country. We would prefer a bill that ensures that anyone who steals from authors would have to pay them back and not get out of it by declaring bankruptcy and going to prison. The artists must be paid back. We must find a way to ensure that offenders' goods are seized for longer than just a few years. The seizure should last many, many years so that the person has no choice but to pay back the author.

I wish the Conservatives would really act in favour of authors' needs and not in favour of the needs of their cronies. This is about the authors.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, I want to address the issue of whether or not the government is listening. I want to speak about the genesis of this bill, the former Bill C-32.

The government undertook a process where we consulted broadly in major cities right across the country. We had a consultation in Peterborough, where folks came in from Toronto and other places throughout Ontario, but also in Toronto and major centres right across the country. We also received some 8,000 written submissions on the bill and considered them all.

I would hazard to say there is not a single group that has either appeared before the previous committee or in fact had interest in appearing that we did not consider its request and see some of what it was seeking to have addressed in the bill addressed.

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

Mr. Speaker, I had the privilege of being on the legislative committee that looked at Bill C-32, the predecessor to Bill C-11. I met with the 132 witnesses and saw the hundreds of written submissions.

I would say that Bill C-11 has a lot of very good and very important things in it. I also feel there were some very good things that were presented by the witnesses representing all sides: the stakeholders, the industry, the artists, as well as the consumers.

What bothered me was that when Bill C-11 was brought forward very recently, it had absolutely no changes in it whatsoever. The Minister of Canadian Heritage said this morning that was done out of respect for the people who had spoken previously. I do not really understand what that means.

Does the member for Winnipeg North share my concern that perhaps we are going through a charade in terms of an exercise here? Nothing was changed between Bill C-32 and Bill C-11, so in the end we are going to end up going through a voting process that will make Bill C-11 the law with absolutely no changes, never mind how many witnesses came and spoke or how many written submissions were presented.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, it is my pleasure to speak today to Bill C-11, An Act to amend the Copyright Act, because this is an important bill whose purpose is to make changes that have been needed for a long time. Certainly this is a somewhat complex issue, since the last version of this act dates from 1997, and the technology has changed a lot since then.

Copyright is a sensitive thing, especially in the electronic age when file sharing and a plethora of content are available on the Internet. Consumers should not be able to download from illicit sources on line without having to pay. Reform of the Copyright Act was needed in order to provide greater protection for our creators. It is also essential to update the Canadian legislation, which is several years behind what is provided in international agreements.

While the government’s intention to focus the battle against piracy on the big offenders is laudable, unfortunately, as my colleague said, Bill C-11 does not take into account the needs of the creators. With this bill, the Conservatives have intentionally avoided addressing the question of a possible expansion of the private copying exception, a measure that has been proposed by the NDP and a number of experts.

In Bill C-11 the Conservative government has brought us back exactly the same content as Bill C-32, which had already been severely criticized by the arts community. Bill C-11, unfortunately, does not achieve the balance that is needed between the rights of creators and the rights of the public. In spite of the fact that a number of artists, experts and spokespeople have addressed the parliamentary committee on this in recent months, the government is once again proposing a bill on which there is no unanimity.

And so the Conservatives have ignored the opinion of the experts heard in committee and the conclusions from their own copyright consultations in 2009. The result is that they have brought in a bill that could do more harm than good, and that is why we need to understand it clearly. We can therefore say that although a number of worthwhile proposals have been made and although there is a will on the part of politicians to work together to achieve a fair bill, the government has continued to turn a deaf ear to those proposals.

The National Assembly of Quebec has unanimously denounced this legislation, which does not ensure that Quebec creators receive full recognition of their rights and an income that reflects the value of their creations. In addition, on November 30 of last year, 100 Quebec artists, including Luc Plamondon, Robert Charlebois, Michel Rivard and Richard Séguin, travelled to Ottawa to tell the Minister of Heritage and Official Languages, the Minister of Industry and the entire Conservative caucus that they did not want the copyright bill in the form the government is stubbornly presenting.

Bill C-11 favours the big players in the creative world. Unfortunately, the small artists and artisans are not as lucky. What Bill C-11 does is to attack artisans’ copyright directly, and in so doing it contributes to destabilizing the low incomes of Canadian artists. An example of the revenue that minor creators will soon have to forego is the tens of millions of dollars now paid to authors annually by the education system. From now on, the education system will be able to use our authors’ works without having to pay compensation. Certainly the NDP supports the use of these works for educational purposes, but it believes that this should not be done at the expense of the creators.

Nor does Bill C-11 provide for any compensation for downloading to an iPod. A solution suggested by many, to impose a $2 to $5 levy on iPods and other portable digital players has been dismissed by the government, once again at the expense of creators. Nor does this bill contain any provision in relation to Internet service providers obligating them to pay fees for music downloaded through their networks. The government is simply calling on providers to be partners in the fight against piracy by forcing them to take receipt of copyright violation notices issued by creators and the organizations that manage their rights.

Another controversial point in this bill has to do with digital locks. Under this provision, it will be illegal, for example, for a consumer to break the digital lock installed on a DVD that the consumer has purchased, just to copy it onto a personal computer. That could become particularly problematic when locks are installed on educational material.

Artists do not benefit because they are deprived of millions of dollars in levies, and students do not benefit because they will have trouble accessing the educational materials they need. Certain copyright owners, the big companies, will benefit.

The Copyright Modernization Act gives with one hand and takes away with the other. Even though the bill contains certain concessions for consumers, these are undermined by the government's refusal to compromise when it comes to the most controversial copyright issue in this country, the digital lock.

When it comes to distance education, for example, the provisions in the new bill mean that people living in a remote community will have to burn their class notes 30 days after downloading them. That is not an improvement on the current situation and it is not an appropriate use of the copyright regulations.

In summary, it appears that all efforts to reform the Copyright Act in Canada in recent years have had very little impact on the creation of a balanced system between the rights of creators and those of the public. One only need look at the demands made by the big content owners in the U.S. to see whom this bill will really benefit. It is a valid question: have the Conservatives forsaken Canadians at the expense of copyright interests in the United States?

Recent documents published by WikiLeaks clearly show that the Conservatives have acted against Canada's interests. The documents paint a dismal picture of the Conservatives who have conspired with the Americans in order to force the adoption of copyright legislation similar to that in the United States.

New documents reveal that the government encouraged the United States to put Canada on their piracy watch list in order to pressure Parliament to pass new legislation that would weaken the rights of Canadian consumers.

In the words of the NDP critic for copyright and digital issues, Charlie Angus, “The U.S. Piracy List is supposed to be reserved for—”

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

Mr. Speaker, I want to congratulate all in the House who have spoken to the bill so far. It has been quite informative. This is a very large, deep, complex bill. It has been bandied about now for the last 12 years, and as my hon. colleague pointed out, the number of emails and amount of input we are receiving on the bill have been quite substantial. In a 12-hour period I have received 2,200 emails regarding this issue. A lot of these emails were addressed to the ministers involved, the ministers of both heritage and industry, and copied to me as the heritage critic, but it certainly gives an idea of just how large this issue is. The implications are going to be felt for quite some time. I want to thank everyone who wrote to our party or to me personally about this matter and about the provisions in the bill.

I will not go back to the historical context, which goes back to Gutenberg, but I certainly would like to talk about the recent additions of this debate and how we have handled it going back to the WIPO treaties, which I will talk about in a little while.

The WIPO treaties were around 1996. As signatories to them, we have to come up with the right legislation to strike the balance that everyone keeps talking about. It is up to us in the opposition to make sure that balance is struck and to raise the bar in debate to make sure that the balance is there.

A lot of the debate is centred around digital locks. The supremacy of digital locks, as my hon. colleague from Timmins—James Bay mentioned earlier, has become a very contentious issue. I will also talk about the creation of works and the protection of the rights of artists, which we feel are of prime importance. As the heritage critic, I spoke to many artists about this issue and about how they want their works to be protected.

As we have all mentioned, in the case of copyright the balance we are seeking is a very thin line between infringement and the right to use a piece of copyrighted material for personal reasons only, and not for other reasons, either commercial or non-commercial. That is why we are here: to seek that balance and to raise the bar.

I would like to give some background now. I would also like to thank the Library of Parliament for providing us with information about what was Bill C-32 and now is Bill C-11. What I will read pertains to Bill C-32, but as the government pointed out, it returned the same bill to the House as it was before, and nothing has been changed.

Copyright is a legal term describing rights given to creators for their literary and artistic works. Copyright attaches to an original work that is fixed in some material form. In other words, copyright protects the expression of an idea or intellectual creation, but it does not protect the idea itself. That is the balance that we need to achieve. It is that one person's perception of a certain idea, and the thought and work that go into that, must be protected. We know that for the vast majority of artists or authors, the remuneration for their work is not always quite up to what it would be in other industries.

The Copyright Act that we speak of and that we hope to change sets out the right to authorize or prohibit certain uses of a work and to receive compensation for its use. There are certain general themes that we have to go through, much of which is to achieve the balance between the right of creators to use their own material for the sake of a profit or to put forth an idea, and the right of others to use this idea and to further their own.

There are two types of rights. Artists who consider themselves to be creators have the economic right to derive financial reward and to make a living at what they do, and of course there is the moral right to protect the integrity of their original work.

That, too, we need to look at when we talk about ephemeral rights, digital locks or TPMs, international agreements and how we are going to do this, because there is another factor we have to consider: although we would consider this to be domestic legislation, it is really an international concept. This is why we create legislation around the treaties that we sign. It is one thing for an artist to have material and to use it for the sake of profit, but it is not only used domestically: it can be used outside our borders. As a result, we have to seek out ways to protect artists and the ways in which they want to make a living.

In the Copyright Act, part I, literary works are described as books, pamphlets, poems, dramatic works, film, videos, DVDs, plays, screenplays and scripts. Musical works are compositions that consist of both words and music or music only. Artists' work includes paintings, drawings, maps, photographs, sculptures and architectural works.

Part II of the Copyright Act contains provisions for what we call “neighbouring rights”, consisting of copyright protection for three categories of work that fall under “other subject-matter”. They include performers' performances, such as actors, musicians, dancers and singers who have copyrights in their performances; sound recordings, meaning copyright for makers of recordings such as records, cassettes and compact discs of the old days, and what is available on MP3 or clouds, which I believe is now being talked about as also protected by copyright; and communication signals. Broadcasters have copyrights in their broadcasting communication signals as well.

We get to the gist of what the Copyright Act was set up to do in the beginning, the genesis of which goes back hundreds of years, and that is to protect the integrity of works for economic reasons and to provide the original artists with a moral right to hang on to their pieces of work. Reproduction can take place in various forms, such as printed publications or sound recordings, and therein lies the protection purpose: the distribution of copies of a work through its public performance, its broadcasting or other communication to the public; its translation into other languages; and its adaptation, such as turning a novel into a screenplay. These are examples of what we hope to provide protection for.

At the same time, we need to look at other things that would be contained under part III of the Copyright Act. That is where we get into the concept known as fair dealing.

The United States of America normally calls it “fair usage”. In Canada and in the international context we use it primarily as “fair dealing”.

Here is what we consider: non-profit education users are considered in this bill, as well as non-profit libraries, museums, archives and those with perceptual disabilities, parody, and satire. All of these categories fall under fair dealing, which is the use of copyrighted material to further education of the masses, let us say through museums and archives, and of course its use for those with disabilities.

Earlier we talked about the situation in which long-distance education could be at risk. There are passages that could deeply affect people involved in long-distance education. It is something that we in the Liberal Party are very concerned about.

In the past, there have been deep discussions about rulings in the Supreme Court, in particular CCH Canadian Limited v. Law Society of Upper Canada. It was a judgment that looked at fair dealing in the context that it should be dealt with, which is to say the fair use of copyrighted material for the sake of the general public. What derived from that was the six-step process. The six-step process talked about six different measures that include having to look at the particular cases through a useful analytical framework to govern determinations of fairness in future cases. These measures include, number one, the purpose of the dealing or the purpose of doing this; number two, the character of the dealing; number three, the amount of the dealing; number four, alternatives to the dealing; number five, the nature of the particular work; and number six, the effect of the dealing on how the work would be dealt with in the marketplace.

There is another international concept that talks about copyright. It is in what is called the Berne Convention. That is a three-step process that is very important, because this three-step process from the Berne Convention is used in many international contexts.

Personally, I think it is a pretty good place to be, because it gives the public, legislators and the courts a measure by which they can look at what is perceived to be fair dealing. It is being used in many contexts. One context was in Canada, although it was expanded upon into the six-step process.

Essentially, the Berne Convention looks at those three measures. Those three measures talk about restricting them to personal cases, that they do not conflict with the normal expectation of the work, and that they do not unreasonably prejudice the legitimate interests of the author.

Therefore, one of the situations that we should consider in doing this is that whether it is a three-step or six-step process, it will be a multi-step process by which the courts can adequately judge what is considered to be fair dealing in situations like the education exemption.

We can have a deep discussion in committee about how to deal with the broad exemptions brought forward, such as the non-profit education sector. I have received hundreds, if not thousands, of emails about this particular exemption. The Canadian Federation of Students believes that the exemption works, because it allows students to further their education as long as it is respectful to the particular author. However, we have received many emails and letters and have had verbal discussions and presentations from authors--people who make a living from writing textbooks, for example--who feel that this particular bill is not the balance that would help them in any way, shape or form.

That is why I believe that if we start talking about the exemptions, we should also talk about a responsible way to handle them. A multi-step process is a good way to consider. Many jurisdictions around the world that considered them to be broad have narrowed down these exemptions, because they have seen how this works. It is something we should discuss in committee, and I will get to that a bit later as well.

Part IV talks about civil and criminal remedies, awards for damages and loss of profits, injunctions and fines.

We have talked about statutory damages. In many cases some people feel they are too stringent, while others feel they are too light. There is a distinction between commercial usage and non-commercial usage or infringement. Commercial infringement requires a larger penalty because of the damage it may cause in the marketplace and how it may skew certain markets by what it does. Non-commercial infringement should be considered as well, and not so much at a higher dollar value, as with fines and remedies or even jail terms.

One of the issues that came to light back in 2005 or 2006 was that the big multinational recording companies were taking kids to court for infringing on their material. I remember making a statement at the time in committee that my 10-year-old had just downloaded a song from a website. It was file sharing. He did not know he was breaking the law. I did not know he was breaking the law at the time. Perhaps I am a technological laggard, but nonetheless it was basically the same as my son walking into HMV, grabbing a CD off the rack, putting it in his pocket and leaving. What is the difference? It is stealing music. It is stealing someone's material, and it should not be allowed.

In order to do this, we have to adapt to the new technologies that we have and the technology that we use to entertain, to create music, to receive that music and enjoy it. If I purchase a piece of music, I listen to it either on a CD, an MP3 player or my Blackberry. The discussion then becomes one on how a particular artist receives compensation for the work that he or she has done.

That is the discussion that was brought forward in the House in the last session regarding the levy. The opposition called it the iPod tax, which is incredibly disingenuous and an absolute insult to people who are making a living from music.

The funny thing was that a week prior to calling it the iPod tax, the government slapped a security fee on people who were checking in at airports. I could have easily called it a traveller's tax. The security fee is okay, but the iPod tax is something entirely different.

The hon. member for Peterborough talked about how it did not matter whether it was a fee or a levy, that a tax was a tax. However, time and time again we are seeing fees such as EI premiums going up in January. The terminology is never a “tax”. It is only a tax when the government deems it to be a tax.

Unfortunately, some of the debate gets off the rails and it become disingenuous. If we are going to committee with this, we should deeply consider a decent, mature, responsible debate about what is at the heart of this debate, which is to allow people to receive compensation for their work. We all know now that people are achieving music in different ways.

It used to be considered a levy when a charge was put on an actual CD. If people bought blank CDs or cassettes, they could record from the radio or other devices to get music for free. They still had to buy the blank CD or cassette, therefore the levy was applied to that. It was a way of remuneration for artists whose music was stolen by many people, some people who were unaware of it.

That is the type of debate we need to have in the House. I would implore the government, as well as the opposition, to have this debate in the House right now. Unfortunately what has happened is we have heard all this testimony, well over 140 witnesses and over 160 submissions, yet no changes have been made to the legislation.

The government says that it is sincere about going ahead, but going ahead with what? There is no indication whatsoever that any changes will be made other than to the “technical stuff”, which is really a technicality in and of itself.

If the government wants to continue this any further, we should consider a deep discussion about this and serious amendments, which is why I support the amendment put forward by my colleague, the member for Halifax West. It talks about a way of handling the legislation before it gets too focused and too confined. I have problems with the digital locks and the education exemption, which need to be looked at. I hope we can have that discussion.

[Geoff Regan, Liberal, Halifax West, NS]

Madam Speaker, I am very pleased and honoured to stand today in this debate on Bill C-11 on behalf of the Liberal Party and on behalf of my constituents in the great riding of Halifax West.

It is disappointing that the Minister of Industry and the Minister of Canadian Heritage and Official Languages do not appear to be interested in listening to this debate.

What we see in Bill C-11 is, as Yogi Berra said, “This is like déjà vu all over again”. In fact, this reminds of another Yogi Berraism. When he was asked about going to Coney Island, he said, “Nobody goes there anymore. It's too crowded”.

This is the same kind of logic that we find in the government's approach to this bill. The new copyright bill, Bill C-11, is a carbon copy of the old copyright bill, Bill C-32. It has the same ideologically driven principles and it has the same flaws and omissions. It has the same, as my hon. colleague from Timmins—James Bay was just saying, American-influenced digital lock provisions.

However, the Liberals recognize that there is a need to modernize the Copyright Act. We also recognize the need to protect artists, creators, educators and consumers. We recognize the need for balanced legislation. We think it is important to have copyright rules that are fair and balanced.

Instead of that, today we have before us a recycled bill that includes some of the most restrictive digital lock provisions in the world. This is, in fact, an approach that Michael Geist, who is the Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, correctly points out is all about satisfying U.S. interests.

I was pleased to see this morning that he actually wrote on his blog today. He states:

The Liberal position is consistent with Bill C-60, their 2005 copyright bill that linked the digital lock rules to actual copyright infringement and did not establish a ban on the tools that can be used to circumvent digital locks.

Clearly, this renowned expert on copyright, the Internet and e-commerce is saying that our approach is one that makes sense and is consistent.

In view of those concerns, the Liberal Party will not support Bill C-11. The digital lock provisions in this bill are far too strict and they override virtually every other right that is in the legislation.

These provisions, for example, make it illegal for a mom to move a movie from her DVD to her iPad or Playbook so that her kids can watch it during a long car trip.

These provisions will make it illegal for Canadians to transfer a movie from a DVD to their iPad or PlayBook so that their kids can watch it during a long car trip, because bypassing the DVD protection measures would lead to a $5,000 lawsuit. That is appalling.

I will take the case of a visually impaired student. If that student needs to shift the format of a digital text so he can read it but finds protection measures on the source material, he would not be able to read it unless he breaks the law. How can that possibly be considered a fair and balanced approach? In fact, it is the opposite of fair and balanced.

I know many of my colleagues across the way do not believe their tough on crime agenda means going after busy moms or students with disabilities, but they should actually consider the implications of this bill because that is exactly what they are doing with this bill.

This morning, the Minister of Canadian Heritage and Official Languages actually claimed that he and the government have the support of the Council of Ministers of Education Canada for the this bill. However, this is what the council actually said, “Much like many other education groups, provincial ministers agree that the digital lock provisions are too restrictive”.

The minister seems to interpret that as support, which is a strange interpretation in my view.

The Liberals are strongly opposed to a government that seeks to make it illegal for ordinary Canadians to exercise their rights to view material they have legally purchased in the format they choose. This is about whether people can change something. If people have a CD they have paid for and they want to transfer the music from their CD to their iPod or, perhaps, to their Blackberry, they want the ability to do that. What the government is saying is that they can do that. It wants Canadians to believe they can do that. However, the government is also saying that it is giving us that right but that it is taking it away because it has put a digital lock on it and we cannot. It is a contradictory position.

Other countries have managed to fulfill their international WIPO treaty obligations without having to implement such strict digital lock provisions. So why would Canada go well beyond what is expected of it? The answer is clear. This bill was drafted for the purpose of meeting the demands of the United States instead of meeting the needs of Canadians and standing up for their interests.

Diplomatic cables, recently released through WikiLeaks, have revealed that much of the bill was drafted specifically to meet American expectations in terms of the digital lock provisions. I find that quite shocking and disturbing. It is not about what is in the interests of Canadians but what is in the interest of some U.S. interests. The Conservatives even offered to provide the United States government with an advance copy of the bill before the Parliament of Canada was allowed to read it.

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

Madam Speaker, I am very honoured to rise on behalf of the New Democratic Party today representing the people of the great region of Timmins—James Bay. It is my honour every day to serve them, respect their issues as constituents and bring their concerns into this venerable House of debate and legislation.

Copyright is a crucial issue for Canadians. We need to move forward with a regime of copyright reform that will bring Canada into the 21st century.

The word “copyright”, the right to make a copy, was created out of English common law. I like the alternate emphasis in French law, which is “le droit d'auteur”, the right of the author. These are both very similar perspectives, but there is a different balance in the equilibrium of it. It respects an interesting balance of how we develop culture within Canada in terms of the right to make a copy. Who has the right to make a copy and profit from it? That is a “copy right” that goes back to the book wars of the 1700s and 1800s in England as to who actually could control a work and the right of authors to be remunerated for their work and to have some say as to how their work is exploited.

This is a debate that went on long before the digital age and the Internet. The balance of the right to make a copy is not a property right. It has been argued over the years, and copyright lobbyists today will talk about their property and their right to protect their property. They will say they want to put a lock on the door to keep people from going in or to make them pay to go in, and that it is their property.

However, it is not a piece of property. Creativity is not a piece of personal property. It has been defined in Parliament and the courts.

I refer back to the 1841 debates where Lord Macaulay, who was a writer himself who had been ripped off and plagiarized many times over the years, fought within the English Parliament to separate the idea that it was personal property that copyright was created to protect. Macaulay at that time imitated much of the modern debate. He even talked about the pirates of that generation, the “knaves who take the bread out of the mouths of deserving men”, the people who would unfairly infringe on the copyright of the author and not pay for it as they should.

At the same time, he also called copyright an evil. It is interesting that he said that. He called it a necessary evil. He said that copyright should only exist for a period to ensure the author was paid, but it could not be used to interfere with the larger development of society. He said that the creation of ideas is not something that can be compartmentalized: that when a work is created, it is brought into a larger frame. Parliamentarians around the world have been trying to find the balance between people's right of access to new ideas and the right of remuneration of the creator. Those are the two fundamental balances, and they are the balanced principles that the New Democratic Party has articulated throughout these debates for the last number of years. The two fundamental principles in the digital age are the same as they were back in the 1800s in the book wars: ease of access and the right to remuneration.

We talk about le droit d'auteur and copyright, but this bill does not deal with either of those rights. It is about corporate right, which is different from copyright. The fundamental problems with this bill are the provisions on digital locks, which I will get to in a moment, and the direct attack on the collective licensing regime that has existed for artists in Canada for the last number of decades. The right of artists to have remuneration for their copies is under direct attack in point after point in this bill. I will go through the areas wherein the right of artists to be paid is being taken away and replaced by a false right, which is the right to lock down content.

The Conservatives are good about locks. They understand prisons and locks. We heard the minister say the lock will restore the market. I spent many years in the music industry and I never met an artist could feed his or her family on a lock. They feed their families on the right they have as artists to be remunerated through their mechanical royalties, television rights and book rights, and they fight very hard for mechanical royalties. It is a small amount of return for their efforts, but that return is crucial, so when the government comes along and would strike out, as it does in this bill, the mechanical royalty rights that have been guaranteed under the Copyright Board of Canada, it is depriving artists of the millions of dollars that actually make it possible to carry on the works.

There is no balance there, and this is what we need to restore a good copyright regime in Canada: a balance of the rights of artists and the rights of access.

The New Democratic Party has spoken out time after time in this House on the need for a long-term digital strategy so that Canadians can fully participate as digital citizens in a digital public commons. A public commons is a place where people, not just from Canada but from around the world, can exchange ideas and art.

It is certainly fraught with many problems. We have seen that with downloading and with piracy, but it is essential for cultural development in the 21st century that Canada have a long-term digital strategy. We in the New Democratic Party see the need to codify net neutrality so that the large telecom giants and BDUs are not deciding for us what kind of content we can access.

We see establishing a national benchmark for broadband access, including in this latest spectrum auction. What provisions are there to ensure that the regions of rural Quebec and northern Alberta are given the same chance to develop in a digital economy as downtown Montreal or Vancouver? A broadband strategy that looks at the totality of our country is essential. This is the new national dream that we need to be pushing. We have heard dead silence over on the government benches in terms of a digital strategy for broadband, but for the New Democratic Party it is essential. We want to see within the programs of the Canadian government support for the enhancement of digital cultural products, because more products are moving away from the old models. Those old models worked well for us in the 1970s, but this is 2011, and we need to move toward that.

The other crucial element, which we have asked for again and again, is a copyright reform that will address the needs of Canadian consumers, artists and students in a digital realm.

Does this bill do that? No. In its present form, it does not.

What we need to do is to restore the balance. As it stands now, we cannot support this bill, but we are willing to work with the Conservative government to get this bill to committee. If we can make the vital technical changes to ensure that balance, then we are more than willing to bring our efforts as a party and to work with the government to ensure that this bill restores the balance.

I will grant that the government made efforts in Bill C-61, which was a dog's breakfast. Bill C-61 died as soon as it was born because it was the ugliest child of the backroom lobbyists, and they could never sell that publicly. Bill C-32 shows that it is obvious the Conservatives heard there were problems with Bill C-61, but we are not there yet. We have to see whether or not the government is willing to move forward.

I would like to talk about some of the major problems with this bill. There are three areas that are fundamentally flawed: the issue of the attack on collective licensing and the removal of artists' rights to be remunerated for their work, the issue of education, and the issue of digital locks.

I asked my hon. colleague, the heritage minister, about the fundamental problem with the education provisions, which is if students in Fort Albany on the James Bay coast want to take a college course, they would be obliged to burn their class notes after 30 days. As well, college professors who were teaching long-distance education courses to students in northern Canada would have to destroy all their class notes after 30 days because that is an infringement on copyright.

That requirement would mean the creation of a modern book-burning regime. As well, we would see the creation of a two-tier set of rights. There is one set of rights in the analog and paper world that would allow students going to school in Toronto to keep their class notes. Those class notes are important, because year after year students keep them to build a body of work towards getting their degree. However, students on a northern reserve trying to get long-distance learning do not have that same set of rights. They have a lesser set of rights.

I was absolutely shocked to hear from my hon. colleague, the heritage minister, where this crazy idea of modern book-burning had come from, this idea that after 30 days students would not have the right to their own class notes. He said it had come from the ministers of education.

I have met with the ministers of education many times, as well as people throughout the education sector, and I have never heard anyone say that the best idea for the digital development of Canadians is to make kids or adults going back to school burn their notes after 30 days.

That provision is unacceptable. It is backward thinking and it is needless. It is not protecting any business model, but it would have a major detrimental effect, so in terms of education, that provision has to go.

In terms of the digital locks, there is an important right of creators to protect their work. We can think of the amazing work of the gaming industry in Canada, particularly in Montreal, and the millions of dollars that have been invested in creating the games that people all over the world play. We want to make sure those products are not ripped off in their entirety and that business model made to disappear, so there is a provision for digital locks to protect those works.

However, the digital lock cannot override the rights that Parliament guarantees.

This legislation is going to create certain rights. An example is the right to extract the work for satire, parody, or political commentary. We all support that right, yet if there is a digital lock, we would not have that right. We have the right to access a work and move it into a new format; we are told we can do that, but if there is a digital lock on it, we cannot.

My colleague, the heritage minister, said that if we do not like the lock, then we do not have to buy the product. That is kind of a bullish way of talking. I wonder if this guy has lived in the digital world at all. How many times do people buy a product in a store? They will get it online, so if we make restrictive provisions with digital locks, people will just bypass them. That is problematic.

It is important that Canadians believe in the copyright regime, because the copyright regime is fundamental to creating a strong economy and a strong creative community. However, I would say there is not a six-year-old kid in this country who does not know how to break a digital lock, and people would break them with impunity. Should they be criminalized for that? I do not think so.

We need to look at why Canada is putting restrictive digital lock provisions in place. Under the U.S. DMCA, which is the most backward-looking copyright legislation on the planet, even the Americans have recognized the right to extract certain works.

I will give an example to show just how boneheaded the digital lock provisions are. If a journalist on the evening news wanted to show an excerpt from a movie that was being discussed or debated, the journalist would not be able to show that excerpt because he or she would have to break the digital lock to do it. The journalist would have to show a picture of the screen. Can anyone explain to me how having a shot of the screen somehow protects the copyright and the artist when a journalist is trying to extract it for a program?

It is the same with the documentary film producers. The documentary film community is very concerned about the digital lock provisions, because they would impede their ability to extract, which is their legal right under the bill. They have all those legal rights, but if a digital lock is placed on it, they would no longer have those rights.

The government is saying that the legislation of Canada should allow U.S. multinational corporate interests to decide what rights we have. If they decide we have no rights, then we have no rights. It does not matter what the bill says or what the House of Commons says; the government is saying that it would hand over all those rights to corporate interests. That is fundamentally wrong, and it is flawed.

It is also flawed in terms of our obligations under the WIPO treaties. We are signatories to international conventions about intellectual property and we can look at how other countries have dealt with the digital lock provisions. In particular, as I said earlier, sections 10 and 11 of the WIPO copyright treaty states clearly that limitations to technological protection measures may be supported as long as they “do not conflict with a normal exploitation of the work”. That is within the WIPO treaty.

I remember that my Conservative colleagues used to always say that they had to put the digital lock provisions on to be WIPO compliant. However, WIPO itself is saying that countries could decide what those exemptions and limitations are, the limitations being the technological protection measures and the exemptions being the rights that consumers and students should be able to employ.

All those rights are erased under this, so it actually puts us at a disadvantage in comparison to many of our European competitors, which have much more nuanced provisions when it comes to the digital lock provisions.

As it stands now, we have asked a fairly straightforward question on whether the government would be willing to work with us to amend the digital lock provisions to ensure that the normal rights that Canadians should legally be able to access would not be overridden by corporate rights. It has said no. Unless the digital lock provisions change, the New Democratic Party will not support the bill because it is not balanced.

We need to change the education provisions. We need to change the digital lock provisions. We also need to change the issue that the bill, time and time again, attacks the existing collective royalty rights of Canadian artists and that will not build the kind of cultural regime that we need in our country.

We have come through some of the most bizarre copyright wars of recent memory. In the United States we have seen the $30,000 to $50,000-plus lawsuits against kids. The large Sony, Warner, EMI companies are going after kids who download Hannah Montana songs, hitting them up with million dollar lawsuits. We have seen what is called the John Doe mass lawsuits, extending across the United States and moving into Canada, if individuals downloaded the movie Hurt Locker. Mass emails are being sent, suing people based on their IP addresses.

That model of attacking consumers is probably the most dead-end business model on the planet. I was so pleased to hear Canadian artists, all the great Canadian groups that came together under the Creative Music Coalition, say that they did not sue their fans, that their fans were what made them survive. The American model of suing kids, grandmothers and even dead people for copyright infringement is a dead-end model.

We have heard all this talk about piracy and the pirate bays. It is interesting that the very first pirate bay was in Los Angeles. We think Hollywood is the natural place to make movies, but it is not. Why, in God's name, when the vast majority of the U.S. population lives on the eastern seaboard, would filmmakers go to the dessert outside Hollywood to make films? It was because they were escaping the copyright rules of the day. They could not make movies in the eastern United States because Edison controlled the copyright on the camera. However, there was not the same copyright rules in California, so Hollywood was the original pirate bay.

It went on through the years when the VHS came out. Jack Valenti, the defender of the Hollywood industry, called the VHS the Boston strangler of movies and begged Congress to shut it down, to make it illegal because VHS was a threat.

The big pirate company at that time was Sony, which is suing people all over the planet for corporate infringement now, because it had created the VHS player with the record button.

At that time there was a big corporate fight and everybody said that the VHS would destroy Hollywood. However, as you know, Madam Speaker, and you are very young but you were probably right in your prime when the VHS came out, people started to rent movies, something they would never have thought about before because they would go to the theatre. Now they were able to rent movies, so this pirate activity, which Hollywood tried to shut down, became such a lucrative new business that it did not have to bother releasing movies to theatres. It could just release it to VHS and eventually on to DVD.

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

Madam Speaker, it is because we want to maintain the integrity of this process from the consultations in the beginning through the tabling of Bill C-32 and the tabling of Bill C-11, which is why we did not change anything in the bill.

We did that deliberately in order to protect the integrity of this process, so we could continue to have witnesses. Again, if witnesses want to come to the committee and offer ideas, we are more than open to it. This is why we have set up a legislative committee.

I am glad this member is interested in a serious approach to the legislation. I am very hopeful that this will continue on at the committee. We want to get this right. We want to get it done effectively. I am very thankful that the member for Timmins—James Bay and the member for Bonavista—Gander—Grand Falls—Windsor are digging into the substance of this bill, so that we can have a responsible debate, not some of the stuff we have heard in the past.

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

Madam Speaker, by way of illustration I just want to bring this subject up once again.

The problem with this bill is the give and take, the balance that the government is trying to achieve is not there. A good example would be if I had downloaded a digital book on my Kindle. All of a sudden I decide I am going to buy the new version of the iPad, so therefore I have to shift from one to the other.

Now there is a provision in this legislation that allows individuals to do that because it acknowledges the fact that it is their own property and they can shift it. However, because of the digital lock, they are no longer able to do that.

That one pulls against the other to the point where it is not a balance, it is a give and take.

The second point, is the government willing to listen to the witnesses who appeared during the special legislative committee on Bill C-32, the ones who already appeared—

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

Madam Speaker, I graduated university in 1999. The University of Northern British Columbia, which actually has satellite campuses on aboriginal reserves, was one of the first universities to engage in this kind of digital learning that my colleague is talking about. We certainly want to protect that kind of education.

The provision that the member refers to in this legislation was not arrived at by the government. It was arrived at after talking to educators, the council of ministers of education, which is every education minister in the country save for the province of Quebec, who offered this proposal that we have in this legislation that we think arrives at the right balance.

The reason for the 30-day limit, of course, is to protect those people, those professors and those educators who are involved in the publishing industry with regard to textbooks. We want to ensure that they will have a business and a business model.

This is the compromise that we have arrived at. We think it works. This provision along with the others with regard to fair dealing and education are the reason why the council of ministers of education across the country, including NDP, Liberal and Conservative education ministers, have endorsed this legislation as being what is best for education.

The member asked if we are prepared to work together. Certainly, this is why we tabled the same legislation as Bill C-32. We want to continue the study.

If my hon. colleague has an amendment he wants to draft and bring forward, we will consider that. We are not obtuse in the way that we are approaching this legislation. We have been open and transparent in the entire process of this bill, in the collection of information and feedback from Canadians from the beginning, through the committee process of the legislative committee, and now as we go forward with Bill C-11.

If my hon. colleague has an amendment that he has drafted and wants to talk about, our doors are open.

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

Madam Speaker, my hon. colleague and I have clashed many times over the years, and have talked many times.

I would like to at least thank him for ensuring that folks back home know that the New Democratic Party is not engaged in the kids in the sandbox routine on the copyright debate that the Liberals are engaged in.

This is serious business. Updating our copyright regime is serious business. We have to treat this with the importance that it deserves.

I did participate in all the hearings on Bill C-32 and we heard hundreds of witnesses. There was a wide-ranging set of views on this. We came again and again to certain technical problems with the bill that had to be fixed.

One of those key problems has to do with the issue of long distance education because in a digital realm we have such incredible opportunity to educate and to have cultural exchanges across this vast country of Canada. One of the technical problems in Bill C-32 is the obligation that class notes have to be destroyed after 30 days because they are transmitted through a digital format.

We think that will create a two-tier set of rights for education, one set of rights for students in a normal school and a lesser set of rights for students taking long distance education.

Will the government be willing to work with the New Democratic Party to fix that problematic area of this bill, so that we ensure that we get the maximum benefit of digital education for the vast regions of Canada?

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

Mr. Speaker, the member over there, who barely won his seat and who thinks he is an authority on everything, is chirping at me.

We tabled Bill C-32 after unprecedented consultation and we respected the process, and we retabled this legislation. As the member said, we had 141 witnesses before the committee and it would be disrespectful to those witnesses if we did not allow the process to continue. The reason we tabled this legislation is to continue the process, to show respect to those members of the committee, and to all members who have been involved in this process.

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

Madam Speaker, I am very pleased to be here with the Minister of Industry. I should also certainly give a great deal of thanks to the President of the Treasury Board for the work that he did on Bill C-32, which was last Parliament's version of Bill C-11, which we are debating today.

As the Minister of Industry said, the bill contains a number of provisions that Canadians, I think, will welcome and are welcoming. The bill contains provisions that will provide the ability of copyright owners to control the uses of their works to fight online piracy. This is about individual creators and creative industries, like the video game industry, the software industry, the movie industry, and others. It is having the tools to protect their art, their businesses and their jobs.

For example, the bill includes provisions to protect the technological protection measures and authorizes copyright holders to sue those who enable copyright infringement through such means as illegal peer-to-peer file sharing sites. Our government knows that the best way to deal with online copyright violation is to target those who enable this crime and profit from it.

More specifically, Bill C-11 introduces a new definition of civil liability for those who knowingly enable online copyright violation. Online piracy takes revenues away from creators and reduces the incentive to create. This measure sends a clear message that Canada is prohibiting piracy sites and giving copyright holders the tools to protect their activities. What is more, the bill also introduces new provisions to stop those who develop and sell tools and services for getting around technological protection measures.

Canada is among the first jurisdictions in the world, if not the first, to provide its copyright legislation with this very important tool to fight online piracy. At the same time, we are taking steps to ensure that Canadians are aware that they may be infringing copyright. Canadian Internet service providers have developed a unique model in which they tell subscribers when a rights holder notifies them that a subscriber has infringed on copyright material. This is known as notice and notice. The bill formalizes this practice into law. I would just point out here that this is one of the key elements that consumers have come to us and said they want as part of the bill.

We disagree with the American approach with regard to copyright. We have a notice and notice regime in our legislation, not a notice and take down regime as they have in the United States, for very good reason. These provisions are also on top of a wide array of legal protections already provided for in the Copyright Act that rights holders can use to assert their rights.

Educators, students, artists, companies, consumers, families, copyright holders and Canadians in general use technology in a number of different ways, and this bill simply recognizes that reality. It gives creators and copyright holders the necessary tools to protect their works, their investments, and to develop their business through innovative business models. It establishes clearer rules that will allow Canadians to fully participate in the digital economy today and in the future. More specifically, this bill gives creators and copyright holders the tools they absolutely need.

With this legislation Canadians will also be able to create new works incorporating existing publishing or publicly available works, as long as it is done for non-commercial purposes, as my colleague has said. The new user generated content cannot be a substitute for the original work or have the substantial negative impacts on the markets of the original material or on a creator's reputation.

Canadians with perceptual disabilities will be permitted to adapt legally acquired material to a format that they can easily use. Also, Canadian photographers will benefit from the same authorship rights as creators. Currently, photographers are not considered authors of commissioned works. This legislation changes that.

Consumers and users of content will also see their interests reflected in the bill. Canadians will be allowed to record television, radio and Internet programs to enjoy at their time and choosing with no restrictions as to the device or technology chosen or the time of day.

Under certain conditions, Canadians will also be able to copy for their personal use legally acquired works such as music, movies or other works, on the device or component of their choice. They will be able to make backup copies in the format and on the device or component of their choice.

I would like to close my speech by ensuring the House understands that this was, from the very beginning of the process that we initiated just prior to the summer of 2009, a good faith effort on the part of our government to get copyright legislation done effectively.

The member for Timmins—James Bay was engaged in debate on Bill C-61 when we tabled that legislation. Bill C-61, as it turned out, was not the balance that Canadians were looking for. We think this legislation achieves the balance that Canadians have come to expect. We tabled Bill C-61, there was the fall campaign, and then we came back.

We re-engaged Canadians from the beginning. We went back to square one. We did unprecedented consultation on this legislation. We heard from thousands of Canadians in the process. We went across the country to town halls and we did open, online consultation. We arrived at Bill C-32.

As a result of the participation of thousands of Canadians in that process, we thought we would respect that process--

[Christian Paradis, Conservative, Mégantic—L'Érable, QC]

Mr. Speaker, as you know, this is the second time that the government has introduced this bill. During the previous Parliament and for almost a year, the Copyright Modernization Act—then known as Bill C-32—was carefully examined and debated by parliamentarians and stakeholders.

We know how much time and effort members of Parliament, stakeholders and Canadians spent on this bill. The legislative committee created to examine the bill heard from more than 70 witnesses and received more than 150 submissions. All stakeholders were consulted, and the government received letters from across the country.

We fully expect that when the bill is once again referred to a House of Commons committee the work and testimony from the previous Parliament will be carefully considered and taken into account.

Over the course of the committee hearings on this bill in the last Parliament, there were two clear messages that emerged. The first message was that this bill balances the interests of the various stakeholders. The bill, a product of wide-ranging consultation and discussion, sets out a balanced approach to corporate reform in the digital age. While the government strongly believes that this bill delivers the best balance between the interests of consumers and the rights of the creative community, we are open to technical amendments that may improve the clarity and intent of certain provisions.

Second, we heard that Canada urgently needs to pass legislation to update the Copyright Act. By reintroducing this same bill, parliamentarians will be able to build on this previous work in order to enable the swift passage of these important legislative updates. Each year that Canada goes without modern copyright laws, the need for such modernization becomes more evident as technology evolves and new issues emerge.

The last time the act was changed, there were no MP3 players. Video stores were still full of VHS tapes. No one thought we would be able to take pictures with a cellphone and upload them onto computer screens around the world, or use a cellphone to download songs and movies.

The world has changed so much since then that the Copyright Act seems like a law for a different era. The time has come to modernize Canada's copyright laws and bring them in line with the demands and technologies of the digital age.

This bill must be passed in order to modernize Canada's copyright regime in accordance with the government's digital economy strategy.

Digital technology opens new markets and expands the reach of companies. It brings together people and ideas in a way that was still unimaginable only a few years ago. When individuals, companies and national economies create and adopt these new technologies, a number of important things are achieved. Productivity and innovation increase, and new products, processes and business models see the light of day.

The growth of the digital economy in Canada depends on a clear, predictable and fair copyright regime that supports creativity and innovation while protecting copyright holders.

The global economy remains fragile. This bill will help to protect existing jobs and create new ones. It will spark innovation and attract new investments in Canada. It will give creators and copyright holders the tools they need to protect their work and increase their business. The bill establishes clearer rules that will allow all Canadians to fully participate in the digital economy, both now and in the future.

One of the bill's main objectives is to balance the interests of all stakeholders in the copyright regime. Achieving this balance has become increasingly complex given the exponential growth of the Internet. Canadians can obtain protected works online, sometimes through revenue-generating platforms or services, but also through free services, both legitimate and illegitimate. Our capacity to use high-quality Web services to obtain, protect and create copyrighted works is essential to our economic success and our cultural presence in the world.

That is why, in 2009, our government turned to Canadians to get their ideas and advice on copyright reform in the digital age. Thousands of individual Canadians, companies and stakeholder organizations shared their opinions on the best way to adapt Canada's copyright regime to this new age. These consultations showed that Canadians were becoming increasingly aware of the importance of copyright in their daily lives and in our digital economy.

On the one hand, this bill seeks to reflect today's reality where the private, non-commercial use of copyrighted material is commonplace. The bill would authorize many of these uses and establish parameters for cases which, to date, were not well defined.

For example, Canadians could copy works legally obtained on their computers and mobile devices to enjoy them wherever they may be. They could store content in and retrieve it from the information cloud or use a network PVR service.

It will also be legal to integrate protected works into a work generated by a user for non-commercial purposes. That would include recording a home video of a child dancing to a song, or creating original mixes of songs and videos. This exception requires that the rights and interests of copyright holders be respected. There are many examples where copyright holders have benefited from exposure on the Internet owing to work done by users.

Finally, the bill updates the Copyright Act to reflect new technologies and uses by broadening the exceptions and creating new ones for educational and training institutions, technical procedures, the development of software, broadcasters and the disabled.

I would like to point out that great care was taken when drafting these provisions to reflect the needs and interests of copyright holders. The provisions do place limits and restrictions on the use of protected works.

For example, many of these exceptions do not apply to works protected by a technological protection measure or digital lock. Copyright holders told us that their digital and on-line business models depend on the robust protection provided by digital locks. Therefore, the bill strikes a good balance. It allows Canadians to make reasonable use of content while providing creators and businesses, whose work depends on this content, with the tools and certainty they need to launch new products and services.

While our government knows that the overwhelming majority of Canadians are law-abiding, we are concerned about the threat of major penalties that hang over Canadians who infringe copyright for non-commercial purposes. Currently, those who have been found to violate copyright can be found liable for damages from $500 to $20,000 per work.

If people illegally download five songs, for example, they could theoretically be liable for $100,000. In our view, such penalties are way out of line. As such, the bill proposes to reduce the penalties for non-commercial infringement. Under its provisions, the courts would have the flexibility to award total damages of between $100 and $5,000.

However, while the bill reduces penalties for non-commercial infringements, it still seriously punishes those who profit from copyright infringement. Penalties of $500 to $20,000 per infringement will still apply to piracy for commercial purposes. In addition, the bill proposes new tools to target those who find techniques to infringe online copyright and it sets out serious penalties for those who make money by creating and distributing devices and services designed to hack digital locks. It will be very difficult to benefit from piracy.

[Dr. Michael Geist]

I'd be happy to.

The concern is there is nothing to stop any business from employing a digital lock. We've seen that in a number of businesses. Many businesses have given it up. You might think back to the music industry that started with digital locks. They thought they needed to lock it down. Consumers, by and large, rebelled and rejected it, and what the industry did was ultimately drop it.

So no one is saying that it isn't open for a business to choose to have a digital lock. Whether we're talking about consumer groups, education groups, the Retail Council of Canada, or many others, the concern they have is that the current proposal in Bill C-11 would effectively mean that the presence of a digital lock would trump many of the other rights that exist within the Copyright Act.

So consumers who purchase a DVD find themselves unable to transfer it from one device to another, and that creates a pretty significant lock.

Earlier this year, when RIM launched the PlayBook, I had the chance to mention this as well when I appeared before the committee studying Bill C-32. I talked out of concern that for people who have invested in a competitor platform—let's say the iPad—the real cost of the device isn't in the device; it's in all the content that, over time, gets accumulated. It's in the e-books, it's in the movies, and the television shows and all the rest of the content you buy.

If what we do is have policies that encourage the use of these digital locks—which, make no mistake, is precisely what Bill C-11 does—then the cost to a consumer transferring content from the iPad to the Canadian PlayBook is increased dramatically because the costs there aren't just in the device. It's now the cost of transferring all that content because the consumer is literally locked out.

[Zachary Dayler, National Director, Canadian Alliance of Student Associations]

Thank you, Mr. Chair.

On behalf of our membership of 26 post-secondary student associations across Canada, representing over 300,000 students, I'd like to thank you and the members of the committee for inviting CASA here today. We are here to present three reasonable, affordable, and necessary investments that the Government of Canada can make, with high returns, to improve the lives of Canadians. I'm sure around this table there's no disagreement that accessing and persisting in education will contribute to a more prosperous and engaged citizenry.

Discussions around Canada's aging population are prominent. In the media, in scholarly articles, and around the dinner table, Canadians are aware that our aging population will cause strain on our social services and labour force in the years to come. As increasing numbers of Canadians retire, labour shortages will become an economic trend. We need to ensure that the education and training opportunities are available now so we can continue to prosper in the face of our future challenges. The realistic investments that the Government of Canada can make to help address the educational needs of the country as well as the future demands of our economy include creating a vehicle exemption in the CSLP assessment, removing the 2% cap on all AANDC funding, and amending the Copyright Act to remove the parallel importation regulations.

On the vehicle exemption, Canadian students' needs are dynamic and ever changing. The standards for assessing needs today do not reflect those of a decade ago. Today many students, particularly those in suburban and rural areas, need a vehicle to go between their home, class, and jobs every day. Unfortunately, public transit is often inadequate, so a dependable vehicle is fundamental to their participation. A low of 31% of students in Atlantic Canada and a high of 49% in British Columbia rely on a vehicle to attend school. The current vehicle exemption is $5,000, despite the median advertised price of a used vehicle in Ontario being $11,400. Given the changing reality for many students, we ask that the federal government exempt a single vehicle from the CSLP assessment of borrowers' assets.

On increasing access for first nations and Inuit students, Canada's aboriginal peoples face persistent inequalities in educational outcomes due to chronic underfunding of programs and services. Between 1971 and 2001, Canada's aboriginal population grew 322% compared to 37% for the non-aboriginal population. Furthermore, a large proportion of the aboriginal populace is now of school age. Forty-five percent of the first nations population is under the age of 25 while a quarter is under the age of 15. These numbers highlight the importance this demographic will play in ensuring Canada has the labour force to grow and be competitive in the future.

CASA recommends that the federal government lift the 2% cap on spending to AANDC's post-secondary student support program and ensure that the program is supported with the appropriate program delivery budget. Our estimates suggest that the government would need to initially invest $424 million with an escalator fixed to eligible enrolment and costs.

Finally, allow parallel importation of academic materials. No Canadian student should carry the burden of unaffordable university textbooks. These regulations force retail booksellers to buy at an inflated price. They also prevent domestic booksellers from finding price efficiencies through competition. If these regulations were eliminated, it would save close to $30 million annually for students alone. As a matter of perspective, the most recent reduction in the GST of 1% saved students around $3.75 million on textbooks. These savings do not include further savings through competition by breaking the federal government endorsed monopoly of exclusive book resellers. CASA recommends that C-32 be amended to eliminate section 27.1 prohibiting the parallel importation of books from foreign distributors.

In closing, let me emphasize the importance of increasing the percentage of people pursuing post-secondary education in this country. By 2025, the number of persons retiring from the labour force will exceed newcomers by 34%. To continue funding health and social services, we need to substantially increase the value of our workforce. The federal government cut investment in education in the mid-1990s to help reduce the deficit. Due to these cuts, Canada faced a brain drain as researchers and graduates left to find opportunities elsewhere. If we want to invest in ourselves and invest in the future solutions to our challenges, this committee will invest in education as a cornerstone to amplifying our human infrastructure and strengthening Canada's economic position.

Thank you.

Financial Statement of the Minister of Finance

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

Madam Speaker, I congratulate my colleague for coming back to the House and on his fine speech starting out with his family. I wish him and his family all the best.

I will start with the copyright legislation that will be, as the member pointed out, reintroduced. If memory serves me correctly, I believe he was on the special legislative committee that was struck in the last House. If not, my apologies. However, I do want to ask about that because a great deal of input came into the committee about the legislation at that time, which I believe was Bill C-32. A lot of that input was about the balance between the creators and the users.

Specifically, what will be absorbed from that input that will be brought into the reintroduced version of the copyright legislation?

If the member has time, my second question concerns the influence of foreign ownership over telecom. I am wondering what the member's thoughts are about protecting the cultural industries, like broadcasting, from foreign ownership for the sake of Canadian culture.

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.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, Mr. McTeague.

Good afternoon. Thank you for being here.

I am going to read you an excerpt:

Extending this provision to education will reduce administrative and financial costs for users of copyrighted materials....

That's on the fact sheets on C-32 that come from the government. If the costs are reduced, some people will get less money, right?

If you pay less, and if schools pay less, someone will be getting less money. So who are we talking about here? Are we talking about creators?

[Victoria Owen]

CLA applauds the Government of Canada for the significant improvements to Canada's copyright regime in Bill C-32. The addition of education, parody, and satire in the fair dealing section of the act are important additions to our national information policy. Education, parody, and satire stand beside other fair dealing uses, which are limited and specified and, above all, fair.

The Supreme Court identified the fairness test, and librarians have interpreted this carefully and cautiously. The fair dealing exception for education must recognize libraries of all types as well-respected cultural and educational institutions and recognize that they are integral to the provision of collections for research and private study for all Canadians. Education and lifelong learning are conducted in earnest in public libraries across the country. Educational institutions, by definition, must include libraries of all types.

CLA is seeking further improvements to the bill, which will benefit all Canadians. Of concern to CLA are the unnecessarily prescriptive protections for digital locks, particularly as they dramatically limit and reduce the impact of the important exceptions for fair dealing, access for people with perceptual disabilities, and preservation of library materials. We join our colleagues at other Canadian cultural and educational organizations in this concern.

CLA supports the fundamental principle of fair dealing in Canada's copyright bill. We do not want to hamper Canadians' ability to fully utilize their statutory rights--for a very limited number of exceptions--by the imposition of technological protection measures. Any copyright legislation must include the right to bypass digital locks for non-infringing purposes. Without this right, the legislation is fundamentally flawed.

Digital locks can prevent people from copying for the purposes of fair dealing, thwart library preservation of materials, and interfere with access to content. Each and every section of the bill that affects access for people with perceptual disabilities must be reviewed in order to ensure that we do not make equitable access more difficult or in fact impossible.

CLA members acknowledge the complexity of copyright in the 21st century. Libraries annually purchase content worth millions of dollars, librarians serve Canadian creators and users, and we see the balance between copyright and users' rights every day.

The library community plays a vital role in providing Canadians access to all forms of knowledge. Access to information is essential to ensure that Canadians are contributors to the economic, social, and cultural well-being of their communities.

We appreciate the Government of Canada's attempt to define the balance among the concerns of creators, content providers, and users as a key goal of continuing copyright reform. The bill has succeeded with fair dealing in adding preservation and in limiting liability, but digital locks on the statutory rights of Canadians undermine so much of the bill's progress in the digital environment.

We would like to thank you again for this opportunity to speak to you.

[Kelly Moore, Executive Director, Canadian Library Association]

CLA is Canada's largest national library association. We represent the interests of approximately 57,000 library staff and thousands of libraries of all kinds across Canada, as well as the interests of all those concerned about enhancing the quality of life of Canadians through access to knowledge and literacy.

Our role is to represent the interests of these organizations and individuals on a range of public policy issues. None is more critical at this time than copyright.

Library users are the Canadian public. There are millions of students, educators, scholars, researchers, lifelong learners, special library users, and recreational readers--from children to seniors. When it comes to copyright, our users are not members of a special interest group. The public interest is the core of our work.

A copy of CLA's brief on Bill C-32, “Protecting the Public Interest in the Digital World”, has been submitted to the committee members and fully discusses CLA's views on the bill. Today we will highlight the key issues as they relate to the library community.

[Victoria Owen, Chair, Copyright Committee, Canadian Library Association]

Good afternoon, and thank you, Mr. Chair.

My name is Victoria Owen, and I'm the chair of the Canadian Library Association's Copyright Committee. With me here today is Kelly Moore, who is CLA's executive director.

We greatly appreciate this opportunity to meet with you today in the context of your study of Bill C-32. I'm currently the head librarian at the University of Toronto's Scarborough Library, and I have been the director of a public library and the director of library services at a library for the print disabled. In all of these environments copyright legislation has had a direct impact.

[Jay Rahn, Chair, Copyright Committee, Canadian Federation for the Humanities and Social Sciences]

Thank you, Mr. Chairman, for inviting the Canadian Federation for the Humanities and Social Sciences to participate in your study of Bill C-32 to amend the Copyright Act.

I am Jay Rahn, chair of the federation's task force on copyright. The federation represents more than 50,000 members who work in Canada's libraries and museums and who teach and undertake research and creative work in Canada's universities. On their behalf, I commend your initiative to modernize copyright legislation. Forward-looking copyright policies will help researchers and creators leverage opportunities that digital technologies present while ensuring copyright owners are fairly compensated. I assure you that our community commends several of Bill C-32's proposed amendments, in particular the addition of education to the list of fair dealing exceptions and the expansion of fair dealing to include parody and satire. We also appreciate the challenge of shaping legislation that incorporates feedback from multiple parties and serves the public good. However, we believe some areas of the bill would greatly benefit from minor adjustments. We did not aim these adjustments at avoiding certain costs in producing teaching materials. Indeed, educators believe that creators, a group that includes many teachers, should be fairly compensated for their work. This is intrinsic to copyright. Recent figures show that Canadian university libraries, for example, spend over $300 million annually, as the committee is already familiar with, to buy and license new content for research and learning.

Our written submission identifies several changes to areas that may create unintended barriers to access or result in avoidable problems of compliance. But for the purposes of this presentation I will review the two most important aspects of the bill for our community.

First, the phrase, “such as“ or “ including, but not limited to”, should be added in the list of fair dealing exceptions to make it suggestive rather than exhaustive. In this regard, we support the inclusion of the fair dealing exception for education. The Supreme Court of Canada has set out factors to help determine if copyrighted materials have been used fairly. These factors were in fact applied in a recent Federal Court of Appeal case that upheld a decision that prescribing multiple copies of a work to a class of students would be unfair. Adding education to fair dealing does not spell the end of publishing. Instead, it could further facilitate the use of Canadian material in classrooms across the country. For example, a professor could podcast a lecture that includes a copyright-protected image without unduly worrying about copyright infringement. We need to ensure that copyright law punishes pirates, not educators trying to teach new content in new ways.

Second, we feel that the language concerning technological protection measures, TPMs, should be amended so it is not an offence to circumvent a TPM for actions that are otherwise non-infringing. This revision, we believe, is consistent with the 1996 World Intellectual Property Organization Internet treaties that Canada has signed. If the digital lock provisions remain unchanged, Bill C-32 would make it an infringing act for anyone, teachers, consumers, and even creators, to break a digital lock for all but a few purposes. For example, those who simply want to shift scholarly articles between devices and formats would be in contravention of the bill. It would also punish creators who increasingly use copyrighted works as a basis for their novel expressions in follow-on works. We believe these changes would result in an act that would better help Canada meet future digital challenges and seize opportunities both domestically and internationally.

Thank you for the opportunity to discuss our views. I welcome your questions.

[Arash Mohtashami-Maali, Head, Writing and Publishing, Arts Disciplines Division, Canada Council for the Arts]

Thank you, Mr. Chair.

My name is Arash Mohtashami-Maali, and I am the Head of the Writing and Publishing Section at the Canada Council for the Arts. As an introduction to this presentation, I would like to give the members of the committee a brief description of the Canada Council and its mandate.

The Canada Council is a Crown corporation that was created by an act of Parliament in 1957 to “foster and promote the study, enjoyment and production of works in the arts”.

Our mandate is to help Canadian artists and arts organizations play a leadership role in Canadian society. Our role is to help our society to access its arts and culture and to engage with these leaders in building a better society based on such fundamental values as freedom of expression, the right to difference, and the right to a unique identity within a plural society.

This is the spirit and vision that we are bringing to our presentation to the committee, in order to share with you our ideas on Bill C-32. We understand perfectly the need for a reform of the Copyright Act. It is obvious that defining a legal framework for this subject within the larger conversation on intellectual property reinforces the commitment to focusing particular attention on the needs of artists and the arts in Canada. We applaud this effort, all the more so since new technologies and globalization, together with the influence of the Internet and new media, have not only contributed to the disappearance of physical borders, but have also made possible the universalization of ideas and literary and artistic creation, and the introduction of new working media for creators.

We have seen the effects of piracy in the arts, especially in the fields of music, film and literature, and it is time to equip the Canadian justice system with the necessary legal tools to protect the interests of authors and artists in Canada.

We all agree that the act must take to heart the protection of the arts and literature in Canada and must ensure the right to an identity that is both distinctive and diverse. This act has to support the best efforts of our artists, writers and intellectuals and their desire to maintain close ties and open dialogues with today's world, building a place of choice for Canadian culture and guaranteeing its survival.

We also wish to thank the committee for listening attentively to the different stakeholders representing the many artistic and cultural communities concerned. It is heartening to see that the bill is being given special attention thanks to this consultation.

Our unique perspective on Canadian creation and our profound understanding of this community mean that we have a privileged contact and first-line responsiveness for hearing the needs and the reaction of the arts communities regarding Bill C-32. We believe that this act, inextricably bound as it is to the fundamental values of our society, must play a unifying role. While it must reinforce in an ethical manner the role of the artist by recognizing his rights, it must also ensure the continuity and fair treatment of independent agencies, corporations and institutions.

As we mentioned earlier, the artistic and literary communities want an inclusive act with legal tools that not only respond to the current changes, but also includes those measures which, over the years, have protected intellectual property in the arts. While new realities have transformed the arts world, the traditional means continue to make up the bulk of the market.

The Canada Council is not a legal expert, but we understand the concerns of the different arts communities. We understand that the introduction into the act of such ideas as 'fair use' is a source of discord and disagreement within the arts community. Every day we witness the preoccupations within these communities, as they express their reservations about the application of these new ideas. We believe that the introduction of a more precise definition would help them come to a better understanding of the position of the act with regard to the rights of individuals and organizations.

We appreciate the declaration in the preamble to the act (paragraph 1) stating that this act is “an important marketplace framework law and cultural policy instrument that, through clear, predictable and fair rules, supports creativity and innovation and affects many sectors of the knowledge economy”. We are confident that the present efforts of the government and Parliament will ensure that Canadians benefit from an act that is progressive and far-sighted, an act that is open but also solid, and that will protect Canadians and their interests. We agree that clarity is the key element of an act that is vital to the cultural survival of our country. We support the effort to establish an act that unifies our citizens around the basic principles of our constitution, and we support the idea that this act must give artists, writers and thinkers “the ability to assert their rights...”

Thank you, Mr. Chair.

[The Chair, Conservative, Gord Brown]

I will call this 19th meeting of the Legislative Committee on Bill C-32 back to order.

In the second hour we will hear from Arash Mohtashami-Maali, from the Canada Council for the Arts; from the Canadian Federation for the Humanities and Social Sciences, we have Jay Rahn; and from the Canadian Library Association, we have Victoria Owen and Kelly Moore.

Each organization will have five minutes. I'll go in the order of the sheet.

We'll start with the Canada Council for the Arts for five minutes.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much.

And thank you to the witnesses today.

I appreciate that all three of you have indicated your support for the passage of Bill C-32 in a timely manner. I think that's important.

I think all of you provide necessary service to businesses and to households across the country. As such, your voice before this committee is very important. I have a number of questions, which I'll get to.

Ms. Dinsmore, one thing in your presentation was network PVRs specifically. I'm interested in that because the bill is written intentionally to be technology neutral. I support network PVRs. I think it's a great idea, to reduce waste and also to provide consumers more choice. It also opens up opportunities for television networks to get more revenues. As I understand it, they can switch out advertisements and so forth—revenues from advertisers.

Why have you specifically highlighted them? Is there something in the bill that you think may not provide for their use?

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

Ladies, do you have anything else to add? No.

Let me go back to the notice-and-notice system.

Mrs. Morin, if I am not mistaken, you said earlier that you received one million notices last year and that you were not able to handle them all. Under Bill C-32 in its current form, you will have even more notices.

Have you thought of a solution to hire enough people in order to handle the one million notices, which will most likely go up exponentially in the coming years?

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

The same goes for Mr. McTaggart.

In line with this topic, a number of people are saying that, when we pass a bill—I don't think it is going to be Bill C-32—that fights piracy and piracy websites, the pirates, the owners of those sites, are going to set up their sites in foreign countries.

Do you think that Canadian courts will be issuing injunctions? Is it possible that legislation on copyright can provide for injunctions requiring that network providers block foreign pirate sites? Is that possible and realistic?

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

I am going to read you paragraph 18(2.3) of Bill C-32. This is what it says:

(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement...

Do you think the wording “should have known is designed primarily” is sufficient?

[Pam Dinsmore, Vice-President, Regulatory, Cable, Rogers Communications Inc.]

Thank you, Mr. Chairman and members of the committee. My name is Pam Dinsmore and I am vice-president, regulatory, at Rogers Communications Inc. I appreciate the opportunity to present our views on Bill C-32.

Rogers is a diversified Canadian communications and media company. We are in a variety of businesses, including wireless, cable TV, high-speed Internet access, radio and television broadcasting, and program production. We also publish some of the most recognized magazines in the country, such as Chatelaine and Châteleine, L'actualité, and Maclean's, and we have extended these traditional brands online using digital media. As such, we support a copyright act that takes a balanced approach to the interests of rights holders and users, thereby optimizing the growth of digital services and investment in innovation.

We believe that Bill C-32 goes a long way towards striking this balance, and we support its passage in a timely manner. However, we think the bill would benefit from some changes to provide greater clarity and certainty for both users and rights holders, particularly with respect to the provisions regarding the time-shifting and hosting exceptions and the notice and notice regime.

First, we are pleased that the bill legalizes the time shifting of television programs and legitimizes the use of personal video recorders. A PVR is a set-top box that our customers rent or own. It is connected by wiring to one of their television sets. PVRs allow our customers to time shift programming from that television set and watch it at a time of their choice. It is a service that has proven to be popular with customers who watch a lot of television programs but want to watch them at the time of their choosing.

We are also pleased that the bill removes obstacles to the implementation of innovative technologies such as network personal video recorder service, or network PVRs. This service will operate in the same way as a PVR but allow for the remote storage of our customers' time-shifted content in servers located in our headends rather than storage within the set-top box. Given that a network PVR service can store programs from any television in a customer's house, it removes the need for them to rent or own a PVR for any of their television sets. It will also allow us to make seamless upgrades to our customers' network PVR service without their having to rent or purchase new equipment. It goes without saying that moving from PVR set-top boxes to a network PVR service will allow our customers to enjoy the benefits of time-shifted programming in a greener and more technically efficient way.

Network PVR is not just a concept. It was launched by Cablevision in the U.S. at the end of last year, following the ruling of a U.S. appeals court that the concept was lawful under U.S. copyright law. This means that Cablevision's customers are already able to time shift programs on any one of their home televisions sets without the need to purchase or rent a PVR. As a result of rolling out its network PVR service, Cablevision has announced that it will stop purchasing PVR set-top boxes to rent to its customers.

Rogers is eager to provide our customers with the same benefits of a network PVR service that are being experienced by Cablevision's customers. We therefore fully support the technology-neutral approach to the time-shifting and hosting exceptions in the bill. The government made this approach clear when it introduced the bill, as did Industry Minister Tony Clement when he appeared before this committee. There are, however, technical improvements that could be made to the drafting to ensure that the government's policy intent to remove barriers to the development of cloud computing and other remote storage services like network PVR are removed. In this regard, we support the BCBC's proposed amendments to the time-shifting and hosting exceptions.

Second, we support the notice and notice provisions in the bill. These provisions will make it mandatory for all ISPs to implement a notice and notice regime. This is a practice that has existed at Rogers on a voluntary basis for over a decade to combat Internet piracy. With the increase in our customer base and increased awareness of the regime on the part of rights holders, the number of notices we process has risen year over year. In fact, in 2010, we processed over 207,000 notices. In our view, notice and notice is the best and fairest way to make individuals aware that they are accused of illegal peer-to-peer file sharing while recognizing that ISPs should not unduly interfere with our customers' online activities. While we recognize that the regime is not perfect, we believe it does result in discouraging repeat offenders. The fact that some European countries are beginning to consider notice and notice as a valid response to illegal file sharing and that some ISPs in the U.S. have notice and notice agreements with rights owners serves to underscore that Canadian ISPs have been ahead of the curve for years in our approach to combatting Internet piracy.

The BCBC has proposed amendments to ensure that the obligations to deliver notices and retain data, and the possibility of cost recovery for doing so, come into effect at the same time. This is to ensure that ISPs have adequate time to design and implement the systems required to comply with these requirements—

[Craig McTaggart, Director, Broadband policy, Regulatory and Government Affairs, TELUS Communications]

Thank you, Mr. Chairman.

Good morning, committee members. My name is Craig McTaggart and I am director of broadband policy at TELUS Communications Company.

Thank you for the opportunity to present TELUS’ views on BillC-32. TELUS considers Bill C-32 to be a strong and balanced attempt to update Canada’s copyright legislation for the digital age.

In my brief prepared remarks, I want to focus on the Supreme Court of Canada’s 2004 decision in the case of SOCAN v. CAIP, or the Tariff 22 case, because it established the legal principles for intermediary liability that Bill C-32 would at long last codify into statute. I do so because the decision and the principles it embodies highlight a crucial distinction between neutral, passive intermediaries, which are not legally responsible for what their users do online, and what have come to be known as the wealth destroyers, those who actively enable mass copyright infringement online.

Let me be clear right off the bat. TELUS recognizes that online piracy is a problem and encourages Parliament to arm rights holders with effective tools to directly pursue those who actively enable it. I emphasize “directly” to distinguish that approach from proposals by some rights holders to offload that responsibility onto third parties, such as ISPs. BillC-32 wisely limits the role of ISPs to assisting rights holders in the enforcement of their rights by putting Internet users on notice that a rights holder alleges that they have infringed copyright online and to retaining evidence to support subsequent legal action.

To understand why this regime is the wise choice, one has to go back at least to 2004 to see how the Supreme Court defined the scope of ISP liability for what happens on the Internet. The Tariff 22 decision established the principle that ISPs neither communicate nor authorize their customers to communicate copyright works on the Internet. The court interpreted paragraph 2.4(1)(b) of the Copyright Act, which says that persons who only provide the means of telecommunication necessary for another person to so communicate a work do not themselves communicate the work, nor are they parties to a communication. Rather, it is those who actually post copyright materials to the Internet who do the communicating.

The court described this regime in the following terms: “So long as an Internet intermediary does not itself engage in acts that relate to the content of the communication,”--that is, whose participation is content neutral--“but confines itself to providing 'a conduit' for information communicated by others, then it will fall within s. 2.4(1)(b)”, the general safe harbour for communications carriers.

The Supreme Court held that in the normal course, Internet access and hosting providers are not users of copyright rights, nor are they liable for the uses made by their customers. Like telephone companies, the court said, ISPs neither know what our customers do on the Internet, nor are we in a position to control it, nor, incidentally, does anyone want us to.

The Supreme Court went on to say that the attributes of mere conduits such as ISPs “include a lack of actual knowledge of the infringing contents, and the impracticality (both technical and economic) of monitoring the vast amount of material moving through the Internet, which is prodigious”. That was in 2004.

Internet traffic continues to grow at a compounded annual growth rate of about 45%. The court recognized the public policy rationale for immunizing content-neutral intermediaries from copyright liability as follows:

Nevertheless, by enacting s. 2.4(1)(b) of the Copyright Act, Parliament made a policy distinction between those who abuse the Internet to obtain “cheap music” and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth.

These are the principles that underlie the ISP-specific provisions in Bill C-32, like its predecessors, and they remain the right principles today.

What has changed since 2004, of course, is an awareness of the need to equip rights holders with additional tools to make it easier for them to enforce their rights against, in the Supreme Court’s words, “those who abuse the Internet.”

TELUS would support amendments that would give rights holders more powerful tools to go after those who actively enable infringement, and also amendments that would prevent the bad guys from taking advantage of the legal safe harbours intended to protect only the good guys.

Like Canada's other major ISPs, TELUS has voluntarily performed notice and notice service for approximately nine years. The decision to formalize the notice and notice regime recognizes the legal reality that ISPs cannot be put in the position of having to decide whether content should be taken down, in the case of hosted content, or whether to discipline their customers based only on an allegation from a rights holder in the case of file sharing. Under Canadian legal values, only a court can determine whether a law has been broken.

I'll end it there.

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

Good morning, everyone. We'll call this 19th meeting of the special Legislative Committee on Bill C-32 to order.

I'd like to thank members of the committee who sent notes of condolence on the passing of my mother. I'm sorry I wasn't able to be here for the last couple of meetings, but we're back in action now.

Today, in the first hour, we have with us from TELUS Communications, Craig McTaggart; from Rogers Communications, Pam Dinsmore; and from Bell Canada, Suzanne Morin.

We will start with Mr. McTaggart for five minutes. You have the floor.

Protecting Children from Sexual Predators Act

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

moved that the Bill be concurred in.

(Motion agreed to)

Hon. Rob Nicholson moved that the Bill be read the third time and passed.

He said: Mr. Speaker, I am pleased to begin the third reading debate on Bill C-54, Protecting Children from Sexual Predators Act.

The bill recognizes that sexual exploitation of children causes irreparable harm to the youngest and most vulnerable members of our society. The bill recognizes that we as legislators not only have the opportunity but also the responsibility to do all that we can to protect children from this harm. No less important, the bill reflects the view held by most, if not all, Canadians that sexual exploitation of children is reprehensible and that the criminal law must treat all forms of child sexual exploitation as such, including by imposing penalties that fit the severity of this crime.

Bill C-54 therefore proposes Criminal Code amendments to ensure that all child sexual abuse penalties consistently reflect the serious nature of this crime as well as to prevent the commission of a sexual offence against a child.

The bill proposes to add seven new mandatory sentences to existing child sexual offences that do not currently impose minimum sentences. It proposes to increase the minimum sentences for seven child specific sexual offences that already have mandatory sentences and to impose two new sentences in the two new offences proposed by this bill. In this way, Bill C-54 would ensure that all sexual offences involving child victims are treated the same by requiring all convicted child sex offenders to serve a term of imprisonment. This would eliminate a distinction that currently exists between the 12 child specific sexual offences that already impose mandatory penalties and the seven additional sexual offences that still do not.

This existing distinction sends out the wrong message. In effect, it says to the majority of child sexual assault victims whose offenders are charged under the general sexual assault offence in section 271 that does not impose a minimum sentence that their victimization is less serious than that of the 19% of child victims whose offenders are charged under child specific sexual offences that do carry minimum penalties. This is just wrong and Bill C-54 would change this.

The bill would also increase seven existing mandatory minimum penalties in the child specific sexual offences to ensure that the minimums are commensurate not only with the offence in question, but are also coherent with those for other offences. For example, offences that carry a maximum penalty of 10 years imprisonment on indictment would have the same minimum penalty of one year.

Accordingly, the existing minimum for the offence of sexual interference in section 151 would be increased from 45 days to one year, which in turn would be consistent with the new minimum proposed in section 271, the general sexual assault offence that also carries a maximum penalty of 10 years on indictment.

During its review of Bill C-54 the Standing Committee on Justice and Human Rights heard from a range of witnesses, including victims' groups, police, academics, psychologists and criminal lawyers' associations. Some disagreed on Bill C-54's approach with minimum penalties. Some argued against minimum penalties. Some advocated for higher minimum penalties and some supported the reforms as proposed by this bill. But without exception they all agreed that child sexual abuse and the exploitation of children is a serious crime and must be treated as such. That is what this bill would do.

This bill proposes reforms to prevent the commission of sexual offences against children. It does so in two ways.

First, it proposes to create two new offences that target conduct that is preparatory to the commission of a contact sexual offence against a child.

The first offence would prohibit a person from making sexually explicit material available to a young person for the purpose of facilitating the commission of a sexual or abduction offence against that child. This offence recognizes that child sex offenders often give this type of material to their victims, often with a view to lowering their sexual inhibitions and making it easier to sexually assault them. If the material is child pornography, irrespective of the reason for which it may be given, this conduct is already prohibited. This bill would now prohibit providing other sexually explicit material for this specific purpose.

Our bill defines “sexually explicit material” in a manner that is consistent with its use and interpretation in the child pornography and voyeurism offences.

The proposed offence would apply to transmitting, making available, distributing or selling such material to a young person for this purpose and would apply whether it is provided directly in a face-to-face encounter or over the Internet.

The second new offence proposed is a prohibition against using telecommunications, such as the Internet, to agree or make arrangements with another person to commit one of the enumerated child sexual or abduction offences.

The existing prohibition in section 172.1 against using a computer system to communicate directly with a child for the purpose of facilitating the commission of one of the enumerated child sex and abduction offences only applies where the communication is between the perpetrator and the child. It does not apply to a situation where, for example, one adult uses the Internet to communicate with another adult to agree with or arrange to commit a sexual offence against a third person, the child. Thankfully, this bill would close that gap.

There was much discussion at the justice committee about this new offence as to what the term “telecommunications” includes. How would the offence work? Does its formulation deny an accused legitimate defences and even legitimize police entrapment? The answer to that of course is no.

The term “telecommunications” is defined in the federal Interpretation Act as “the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system”.

Using such a broad but clearly defined term would ensure that this new offence would apply to the same prohibited use of new technology that may be created after this offence is enacted.

The new offence would operate in a similar manner to the existing luring a child offence that is found in section 172.1 of the Criminal Code. It includes the same provisions about presumed or reasonable but mistaken belief in the age of the child.

Like the existing luring a child offence, the common law defence of entrapment would still be available to an accused in the appropriate circumstances.

Bill C-54 also proposes to require a court to consider prohibiting a child sex offender and a suspected child sex offender under section 810.1 from having both access and opportunity to sexually molest a child. It proposes to expand the list of sexual offences for which such prohibitions could be included to include four prostitution offences where the victim is a child.

Courts would also be specifically directed to consider imposing two new conditions prohibiting the offender from having any unsupervised access to a young person or from having any unsupervised use of the Internet.

These conditions would help prevent the offender from being placed in a situation where he or she has access and opportunity to sexually assault a child, and from having unfettered use of the Internet or other similar technologies that are instrumental in the commission of child pornography and other child sexual exploitative offences today.

Witnesses before the justice committee were generally quite supportive of these proposed preventive measures.

There was some discussion of what is meant by these provisions' use of the term “the Internet or other digital network”. Bill C-54's use of “the Internet or other digital network” is consistent with its commonly understood meaning. It is also used in Bill C-32, the Copyright Modernization Act, which is currently before Parliament.

Clearly, the intention here is to direct the court to consider imposing such a prohibition where it is appropriate in the circumstances of the accused and the safety needs of the community and, as specifically directed by this bill, to impose the prohibition subject to any appropriate conditions as determined by the court.

I am confident that this proposal strikes the right balance in providing sufficient clarity and needed flexibility to enable the courts to craft a clear and understandable prohibition with any applicable conditions warranted by the circumstances of each case.

This is an important step forward in the protection of children in this country, and I am asking the House to pass this bill as rapidly as possible.

[Ed Fast, Conservative, Abbotsford, BC]

--that the Supreme Court of Canada has no higher court that supervises it, especially coming from a law professor.

Let me ask you one other question, and that has to do with your statement. You made a statement that Bill C-32, with the amendments it makes, does not comply with our international obligations. Yet, on the other hand, you said that we are, with this bill, in fact implementing the WIPO treaties.

So you're saying that there somehow is non-compliance, and yet, on the other hand, there is compliance with WIPO. Which is it?

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

Thank you.

In your opening comments you spoke about some of the realities of the Internet as well. One of the things that Bill C-32 does finally is allow Canada to implement the provisions of the WIPO treaties. Do you agree with that?

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

Great. Thank you. So Bill C-32 needs a little bit of housekeeping, then.

We've had a number of eminent organizations, national organizations, before this committee. They've come to us and they've said the government should be applauded for the work that's been done on Bill C-32, that it's clear there have been extensive consultation processes that have taken place, that the bill perhaps isn't perfect, that it needs to be tweaked here, refined there, but that we've done a tremendous job of buttoning it down.

We had the Canadian Chamber of Commerce. We had the Canadian Council of Chief Executives. We had the Association of Universities and Colleges. We had student associations. We had the recording industry and we had the movie industry. They've all come here and said that.

Were they all wrong?

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

Thank you, Mr. Chair, and thank you to our witnesses for being here this afternoon.

Professor Azzaria, in your opening statement you used some terms and descriptions of Bill C-32. For example, you said you thought it was a bit of a legal puzzle. You also said you thought it was opaque. I might suggest that those descriptions more appropriately apply to some of the presentations we've heard before this committee, including the ones today.

In any event, I'd like to try to get some more specifics, because you've made some broad statements.

As well, in your opening statement you said you thought the bill needed a little bit of housekeeping, but then in a response to a question you suggested the whole thing should be scrapped. Which is it?

[Annie Morin]

The Copyright Act nevertheless needs to be improved, but not in the way proposed in Bill C-32. In the circumstances, it would be better to keep the present act rather than include the provisions of Bill C-32, which might cause utterly irreparable harm. One need only think of private copying. From the moment consumers can make copies in all kinds of artistic fields for private purposes—that wouldn't just involve music, but books as well, in particular—it will be difficult for a subsequent government to repair that. People will have enjoyed that option without ever having to pay a cent. Free copying will have become an acquired privilege. Once everything is free of charge, it's hard to say you're sorry, but that this is the result of the work of people who deserve to be paid. In short, in the circumstances, I believe it would be preferable for Bill C-32 not to be adopted.

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

Would you say that it would be preferable for artists to live with the current act, which was amended in 1997, rather than accept Bill C-32?

[Raymond Legault]

Mr. Moore referred to six requests submitted during the seminar at which we were consulted. That was in August 2009. At the time, we delivered a brief, evidence, to Mr. Moore. That evidence included nine requests. I'm going to read the list. However, I can tell you that only one request was accepted. As for the others, one was half-accepted and the other seven were rejected.

The requests were as follows: private copying; a system extended to include the audiovisual sector; exclusive rights granted by WIPO with transitional measures: exclusive rights would be granted, but not transitional measures; performances included in cinematographic works—as I said earlier, this is not the case in Bill C-32; a moral right—this appears in Bill C-32, but it states that an artist may waive it, which means that something is being given with one hand and taken away with the other; the impossibility of assigning uses that are not already provided by the act—Bill C-32 makes no reference to this; with regard to revenues over $1.25 million, we asked that both writer composers and performers have the right to the same thing—and that does not appear in Bill C-32; and lastly, with regard to the responsibilities of Internet service providers, we ask that there at least be a "notice and withdrawal" system. However, everything in Bill C-32 is a "notice and notice" system, that is to say that an artist is given the opportunity to say that a person is downloading music illegally and to request that a notice be sent to that person.

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

Thank you very much.

First of all, good afternoon, everyone.

Good afternoon, Mr. Azzaria. I wanted to answer one of the questions that you asked at the end of your presentation. Then I'll put some questions to my friends from the UDA.

You're wondering why the government hasn't included the following right in its Bill C-32. That's because, as you noted, all revenue is taken away from artists under Bill C-32.

For the government, this is a loser-loser-loser situation. There is no respect for artists. Earlier we saw how Mr. Del Mastro addressed Ms. Atwood.

Furthermore, with this bill, the government impoverishes artists and culture; it establishes a main barrier to prevent the Copyright Act from being modernized; it prevents itself from combatting illegal downloading and also fails to comply with international treaties.

This kind of loser-loser-loser situation is incomprehensible. Bill C-32 strips artists of all their revenue streams and gives them no others.

Mr. Legault and Ms. Morin, welcome. I've had a question for you for some time.

The Minister of Canadian Heritage, James Moore, has often said that Bill C-32 addresses four of the six concerns of the UDA and Artisti. Now that you're here together, you'll be able to answer me.

Is that true? And what are those concerns?

[Georges Azzaria]

I don't believe so.

This is one of the problems, and it has to be said because there will be challenges. If Bill C-32 is passed as it stands, there will be challenges for 10 years before the international and Canadian economic tribunals.

I don't see how Parliament has any interest in telling people to go and fight in the courts and then we'll see what happens.

Virtually all stakeholders who have come and talked about the three-step test have said—in any case, I heard a few say it before you—that this wouldn't pass the international test.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

I have a few seconds left.

In your view, will Bill C-32 enable us to meet our international obligations?

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

You said that copyright is based on the right to property. In your view, what becomes of the right to property in Bill C-32?

[Annie Morin]

It is.

As it currently stands, it's preferable for Bill C-32 not to be adopted.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Ultimately, we don't want to restrict access; we want there to be more access, so that people can use more cultural products, but we also want artists, creators and rights holders to be compensated for their work. That's the goal and that's what has to be demystified. The idea isn't to block access; we have to make it available, but while being fair.

My question is for the three of you. If I'm not mistaken, in your view, Bill C-32, as presented, not only does not improve the situation, but worsens it and should not be adopted. Is that the position of each of you?

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, Mr. Chairman.

Thanks to each of you for being with us today.

My first question is for you Mr. Azzaria. You said that Bill C-32 faces us with a legal puzzle. The government is telling us that this will simplify and clarify matters. You're telling us the contrary. Can you clarify your thinking, please?

[Raymond Legault, President, Union des artistes (UDA)]

Thank you, Mr. Chairman.

Thank you for having us.

The Copyright Act must be amended. There can be no doubt about that. It is obsolete. It no longer meets Canada's international obligations and has not been adapted to the digital universe.

However, there are a number of elements in Bill C-32 that do not meet stated objectives or comply with the international treaties that Canada has signed. In addition, Bill C-32 generally runs counter to social choices made in the past, including the decision to promote collective management in order to guarantee creators a right to compensation for the uses made of their works.

Today, by adding exceptions without providing for a right to compensation, and by absolving certain players in the new economy of all responsibility to the detriment of creators, Bill C-32 runs counter to the modern orientations that Canada has adopted in the field of copyright.

Bill C-32 creates new exemptions for private copying. I will limit myself to the possibility for users to make private copies for later listening or viewing. The problem with this new exemption is that the numerous conditions for its implementation cannot readily be verified. How could a rights holder determine whether a user has retained the copy solely for the time necessary to watch the program at a better time? And what does "the time necessary" mean? A week, a month or a year? It's not defined.

It will clearly be impossible to verify whether the conditions of the exemption are met. Consequently, rights holders will be able to exercise no control over copies made by users, and, in actual fact, consumers will ultimately do what they want.

The bill provides for no compensation for rights holders whose works, performances and sound recordings are produced in that manner. And yet it would have been possible to expand the private copying system to include audiovisual copying as is the case in France.

Another stumbling block in Bill C-32 is the issue of technical protection measures and recourse offered to rights holders. Bill C-32 contains provisions prohibiting the circumvention of technical protection measures.

However, this opportunity for rights holders to put these measures in place is quite theoretical, in the case of performers, because they are not the ones who make the media incorporating their performances available to the public.

I would also like to emphasize that virtually none of the works that have been produced to date are equipped with these mechanisms or locks. And virtually all works circulate on the net through illegal downloading networks. This therefore means that it will never be possible to protect those works, which nevertheless enjoy immense popularity.

Bill C-32 does not come close to creating the necessary incentives for these TPMs to be effective in Canada. Most rights holders cannot afford to institute proceedings to collect to the paltry sums provided for under Bill C-32.

Another matter addressed by Bill C-32 is Internet service providers and their obligations with regard to copyright violations. The proposed amendments provide for a "notice and notice" system rather than a "notice and withdrawal" system that would require the service provider to withdraw the material in violation of copyright, as in the United States, for example.

The creation of this kind of obligation would have given rights holders real means to put a stop to the violations, and to do so quickly, thus limiting the economic damage caused. Internet service providers are absolved of responsibility for copyright violations that are committed on their networks, whereas they benefit from them to a large degree.

In another connection, Bill C-32 introduces new rights for performers. Although the UDA approves these additions, it deplores the fact that they are applied only in cases where the performance is fixed in a sound recording.

Consequently, performers whose performances are fixed in a medium including a visual aspect, such as music DVDs and digital audio files containing videoclips, do not enjoy the exclusive right of reproduction or other rights created by Bill C-32. This distinction is unfair and serves no purpose.

Furthermore, with regard to these new rights, Parliament should have ensured that the rights initially granted to performers could actually benefit them by providing that those rights could not be assigned before they were even created by the act.

The utility of this kind of transitional provision is not merely theoretical. There are practices in the industry whereby producers request that performers assign all copyright over their performances.

Lastly, Bill C-32 grants moral rights to performers, a fact that the UDA is very pleased about. However, we note that the moral right of a performer is recognized only where the performer's performance is given live and fixed in a sound recording.

It follows that artists whose performances are included in an audiovisual or cinematographic work will not enjoy a moral right over that performance.

The UDA notes that Bill C-32 provides that performers may be led to waive their moral rights, which poses a serious problem from the standpoint of Quebec's civil law.

In conclusion, I would say that, unless it undergoes significant amendments, Bill C-32 should be abandoned. While it claims to be modern and to favour creators, it in fact favours the users and businesses that benefit from their work.

Thank you.

[Annie Morin, Director, Artisti]

Thank you, Mr. Chairman.

As a collective society that administers and distributes to performers who have taken part in a published sound recording royalties from fair compensation from the private copying and right of reproduction system, Artisti has a number of concerns with regard to Bill C-32.

The first of those concerns relates to the private copying system. The private copying system was put in place in 1997 to enable users to make copies of musical works for their personal use and, at the same time, to grant compensation to rights holders in the music sectors for those copies of their work.

Since the private copying system was implemented, royalties from that system have been a crucially important source of compensation for rights holders. Between 2002 and 2007, royalties from private copying constituted more than 50% of amounts from Canadian sources distributed by Artisti to its Canadian members. However, that is now less and less the case.

The private copying system has been outpaced by technology. Currently, only sales of blank CDs generate royalties. However, they are used less and less to copy music. The medium now preferred for making copies is the digital audio recorder, such as the iPod, which is virtually excluded from the system. Consequently, royalties from private copying are declining at an incredible pace, despite the fact that users are still making as many copies of musical works. We had requested that the amendments made to the Copyright Act correct this problem, but Bill C-32 does not correct this unfair situation. What is worse, it adds to the problem.

If Bill C-32 is passed, everyone will have a right to reproduce for private purposes any work, performance or sound recording, if the original version has been obtained lawfully, and if certain other criteria are met. However, this new exemption will not apply in the case of private copies of musical works made on a blank audio medium such as a CD. Furthermore—Mr. Legault will have the opportunity to talk more about this—it will also be possible to make copies of programs for later viewing or listening, for example.

The introduction of new exemptions covering certain reproductions made by consumers, which does not involve changing the system of royalties for private copying has the harmful effect of in fact creating three separate private copying regimes, two of which do not provide for any financial consideration for creators. There is the present regime which provides for the payment of royalties on audio media such as CDs. There is also the new exemption for reproductions for private purposes, which permits reproductions on a medium or device other than those provided for under the existing system, but which does not provide for compensatory royalties. Lastly, there is the new exemption which permits reproduction for later listening or viewing, without compensation for rights holders.

If Bill C-32 is passed, these three exemption regimes will stand together, each with its own set of non-standard rules. Consumers will not understand them and will ultimately do what they want in any case because there will be no way for rights holders to ensure that reproductions done in homes are performed lawfully. The complicated aspect of the exemptions and the absence of any logic in the proposed amendments runs counter to at least one of the principles stated in the preamble to Bill C-32, that the act should contain "clear, predictable and fair rules".

There is no logical justification for this distinction between the various copies made by consumers for personal use. A copy, whether it is made on a blank CD or on a digital audio recorder, is still a copy, and rights holders should be able to receive royalties for the use of their work, regardless of the medium used. Furthermore, Artisti is of the view that the proposed new exemptions would not pass the three-step test contained in the international treaties to which Canada is a party.

Artisti's second concern is the exemption for reproductions made by broadcasters. Bill C-32 provides for the deletion of subsection 30.9(6) of the current version of the act. The deletion of this provision seems to indicate an intention to eliminate broadcasters' current obligation to pay royalties for reproductions made for broadcasting purposes. It goes without saying that this measure would deprive Artisti's members of a source of revenue since broadcasters are currently required to pay them royalties for the reproduction of their performances.

Lastly, Artisti's third concern pertains to the exemption provided for in section 68.1 of the Copyright Act. In the 1997 reform, Parliament introduced a right to fair compensation requiring broadcasters to pay royalties for using music by distributing it over their airwaves. However, section 68.1 of the act currently provides for an exemption that releases broadcasters from the obligation to pay royalties on the first $1.25 million of their annual advertising revenues.

This situation is utterly unfair as it concerns solely the royalties intended for performers and producers of audio recordings, whereas the royalties paid to authors and composers are subject to no such exemption.

The same is true for the royalties collected by broadcasters.

Artisti deplores the fact that this unfair and obsolete exemption has not been deleted from the act despite its requests to that end.

Thank you.

[Georges Azzaria]

Thank you for listening to my testimony.

I am briefly going to outline a few basic principles of copyright. First, I remind you that copyright is the main piece of legislation designed to give economic value to the work of authors, performers and their talent, as well as to the investment of producers, broadcasters, publishers and so on.

In my view, this bill clearly dilutes the economic value of the work and of this entire chain of stakeholders. It places us before a legal puzzle—and I am weighing my words here—as a result of which producers, broadcasters, service providers, educational institutions and users reduce the position of the author and rights holder, particularly as a result of the increase in the number of exemptions, which are not associated with compensation. Even though you know this, I consider it a good idea to remind you that copyright is based on a simple principle. It is a right of ownership that has been recognized for hundreds of years and that confers the power to grant permission. The author gives his permission because there is a right of ownership at the outset. The issue behind that is the acknowledgement that a work has an economic value.

Copyright has always been built on this model, on this economic exchange. The incomes of authors are sporadic, and this is what is being jeopardized by this bill. The rise of new technologies can obviously change the situation somewhat. This is a culture in which works are accumulated and are free of charge, in some cases. And yet there are no studies showing that, with the Internet, consumers are being deprived of works and are becoming acculturated. On the contrary, we realize that legal purchases are increasingly being made. So we see that the Internet is not a kind of lawless area where everything is permitted, but that, on the contrary, the law and its rules are firmly established there. With these new technologies, copyright can absolutely transpose the rules that prevailed in the 20th century. The Internet has not changed the basis of copyright.

I believe it is important to focus on the bases of copyright. And one of those bases is collective management. It is the natural economic relay of this model of exchange between authors and users which has been applied for nearly a century, since the 1930s in Canada. This is what simplifies the exchange. It is the equation between access to a work and compensation for the author. We even see that, in France, agreements have been signed quite recently between YouTube, Dailymotion and the collective societies. This clearly shows that, if we leave the rights to the authors, the users and user networks will necessarily negotiate with them. Access will not be cut off. In France, everyone has access to YouTube and can post works there, but authors are compensated under that model. People don't realize that this economic model is viable and functional. I believe it is important to emphasize that point. We must preserve and even reinforce this economic model.

Bill C-32—and a number of people have had occasion to say this—is becoming much too complex, in my view. I was hoping that this bill would help clean up the situation, but I see that, on the contrary, it is contributing to a certain amount of disorder. The act is becoming opaque, and Parliament curiously is extremely interventionist. It is quite curious to see that it is interventionist in this very specific economic sector, whereas it is much less so in most other sectors. You all know the requirement in a democracy that an act must be clear and well understood in order to be complied with. In this instance, that is not necessarily the case.

I would like to draw your attention to one effect, an instance of confusion in the act, and to the extent of the exemptions it provides for. Subsection 38.1(2) of the current Copyright Act provides as follows:

(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had not reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.

In my view, in the current state of the bill, defendants will quite easily be able to say that they thought they were dealing with an exemption, that the bill has become so strange and complicated that they thought, in good faith, that they were entitled to do what they did. Then the judge may perhaps decide to impose a fine not of $15,000, but of $200. This bill will indeed have very concrete effects. Perhaps later we can talk about the three-step test, which is obviously still a problem. I know a number of people have emphasized that fact.

On that point, I would simply add that, when we analyze the economic effects of an act, we don't wonder in each case whether they are significant or not. We examine the whole. If there is a systemic effect, that's where we see that the effect is significant.

In closing, I would say that the bill emphasizes the following right for authors in the visual arts, among other things. This following right is absent for reasons that I am unable to understand. This isn't a measure that is costly for the government, on the contrary. The point is to let people in the sector organize matters amongst themselves.

Thank you.

[The Acting Chair, Conservative, Maxime Bernier]

Good afternoon, everyone, and welcome again to the committee. We are continuing our 18th meeting on the study of Bill C-32, An Act to amend the Copyright Act.

We have with us Ms. Morin from Artisti, and Mr. Legault, from the Union des artistes du Québec. We also have with us, via videoconference, the assistant dean of the faculty of law at Laval University, Mr. Azzaria. Thank you for being with us.

Before starting, I'm going to give the floor...

Ms. Lavallée?

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

So you are of the view that we should not adopt Bill C-32.

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

First, I would like to thank you for testifying before the Legislative Committee on Bill C-32.

Earlier you talked about confiscating copyright. These gentlemen from CSI said that Bill C-32 prejudiced authors.

Do you believe that too? Do you believe that Bill C-32 prejudices authors? What do you believe? Should we adopt it as such or not?

[Casey Chisick, Legal Counsel, CMRRA-SODRAC Inc. (CSI)]

It's important to recognize that the purpose of exceptions to copyright infringement is to guard against situations where otherwise reasonable access to works would be unavailable; it would be compromised. But there is more than one way to achieve that.

CSI's position is that where there are ways to achieve that balance between access and compensation without depriving creators of the right to receive compensation, those alternatives should be preferred. In our view, collective licensing is exactly that alternative, because collective licensing provides access to users at a reasonable and regulated price with reasonable effort at a reasonable time. That principle is already enshrined in the Copyright Act, both in relation to the federal recordings exceptions, which we talked about today, and to many of the exceptions that are available for educational institutions, which are not available if the work is commercially available.

We propose the same for the other new exceptions that are suggested in Bill C-32.

[Marian Hebb, Board Member and Past Co-Chair, Artists' Legal Advice Services]

Artists' Legal Advice Services is a summary legal advice service that provides free legal service to artists of all disciplines: musicians, visual artists, writers, actors, and dancers. We are therefore acutely aware of how difficult it is for artists to earn a living.

The preamble of Bill C-32 mentions two goals that are in the public interest, which could conflict but can be compatible: for rights holders, recognition, remuneration, and the ability to assert their rights; for users, further enhancement of users' access to copyright works.

Everyone wants easy access to copyright works. That can be achieved by either collective administration or by statutory exceptions. Both provide the same ease of immediate access to consumers, but collective administration also provides creators with remuneration that's either negotiated with users or fixed by the Copyright Board.

Rights-holder-run collective societies administer collectively licences or tariffs, which replace multiple, low-value transactions that could otherwise be between the individual rights holders and users, but in fact it's often impossible for individual creators to negotiate individual licences for secondary uses of their work.

Most independent professional creators in this country earn less than $20,000 a year from their professional work, many of them far less, and comparatively few considerably more. Cutting back further on creators' rights with new exceptions will make it more difficult for them to support themselves. ALAS submits that statutory exceptions should be considered only where individual licences are not practicable and collective administration is not available.

We live in times of rapid technological change. Copyright legislation should remain neutral to changes in the marketplace and not introduce exceptions that will prevent creators from earning revenues from new or future business models. The preamble to Bill C-32 refers to the Copyright Act as an important marketplace framework law, affecting many sectors of the knowledge economy through clear, predictable, and fair rules.

It is hard to see how some of the proposed exceptions can be considered clear or the outcomes predictable, leaving aside the question of fairness. For example, there's no guidance in the proposed legislation to consumers or rights holders on how the new fair dealing exception for education might relate to existing educational exceptions or to the new ones proposed in Bill C-32, or whether it relates to them at all. No one will know what this new fair dealing for education means until the courts tell us.

We do know that savings for education mean less money in the pockets of creators. There are other exceptions for education in the current Copyright Act, which Bill C-32 proposes to revise at the expense of creators, because they either remove or reduce the ability of collective societies to license schools and post-secondary institutions for certain uses.

To take an example, the updated version of the interlibrary loan exception in Bill C-32 would allow a single library to supply the same copyright material copied from either print or digital publications directly to the computer of every student or other person across Canada who might choose to order it from his or her school, university, or local public library. We all want digital delivery from libraries. Creators will be among the most frequent users. But their collective societies, which today license photocopying in libraries, should have a reasonable opportunity, following the update of other provisions of the Copyright Act, to offer licences for digital delivery.

The exception for user-generated content, or mashups, is a brave step to recognize current realities, intended to catch up with consumer behaviour by allowing existing works to be used in the creation of a new work by a different author for his or her non-commercial purposes. But much stronger restrictions are needed to make any user-generated content exception fair to the original author. A new work that uses an existing work by another author, also often including performances by artists, should remain private unless there is permission or payment. Collective societies should collect royalties for the creators from a disseminator such as Google-owned, advertising-rich YouTube.

Another extraordinarily broad exception will allow everyone to reproduce any work without compensation to the author or performer for private purposes. This reproduction is subject to some restrictions, but without the clear, predictable, and fair rules promised in the preamble to the bill, it will be left to individual litigants to find out what the courts may allow as a private purpose. Digital locks are not an acceptable substitute for clear law.

Creators mostly do not want to use digital locks. They want users to access their work freely, but not for free. A collective administration model already exists for the private copying of music, although it badly requires updating for the digital environment.

All of the exceptions I have mentioned are intended to exempt users from licensing and payment for uses that currently are or could be administered efficiently by collective societies, subject to the oversight of the Copyright Board.

Copyright provides the legal foundation for creators' business models and is the economic basis for all of the creative industries. Particularly in the digital environment, collective administration of secondary rights plays a critical role. Confiscating creators' rights means more copying and less licensing of Canadian works. Artists and other cultural workers will find it harder to survive as their markets shrink and jobs disappear. Inevitably there will be fewer made-in-Canada works for all of us to benefit from.

Thank you.

[Alain Lauzon, Vice-President, CMRRA-SODRAC Inc. (CSI)]

Modernizing the Copyright Act should aim to create a stable, innovation-friendly environment without eliminating existing or potential royalty sources for creators.

The current law is technologically neutral and this principle should not be called into question. What constitutes copying or reproduction today should remain so as technologies continue to evolve.

In determining the value of various types of reproductions, the courts have thus far applied a range of economic values established on the basis of the reproductions' utility and effectiveness in the eyes of various users. However, Bill C-32 creates numerous exceptions that do away with royalties.

More specifically, section 32 of the bill, which authorizes technological reproductions, should be withdrawn. At the very least, the wording should be revised to ensure that it covers only transient reproductions without real value. If not, the subjective notion of "facilitate a use" will prompt certain broadcasters to think that the reproductions they currently pay for will be free of charge.

Section 22 of the bill, which authorizes multiple backup copies, should be reviewed. Why should multiple copies be authorized when a single copy is sufficient?

In addition, section 22 would allow "commercial intermediaries" such as YouTube to keep on developing profitable business models by distributing non-commercial user-generated content without compensating the rights holders.

One of the solutions proposed in our brief would be to allow these intermediaries to reproduce existing works if they obtain a licence from a collective society.

A straightforward solution aimed at fixing the current bill would be to stipulate that the exceptions created by the bill would only apply if a collective society were unable to issue a licence.

The collective licensing system has been in place for several years now and has not brought about a market collapse. Collective licensing is the best solution to reach a balance that would support innovation while ensuring compensation for rights holders.

Thank you for your attention.

[David Basskin, President, CMRRA-SODRAC Inc. (CSI)]

Thank you, and good morning.

My name is David Basskin. I'm the president of CMRRA-SODRAC Inc. (CSI). With me are Alain Lauzon, CSI's vice-president, and our legal counsel, Casey Chisick, and Martin Lavallée.

CSI represents the reproduction right in musical works—songs. Broadcasters, including commercial broadcasters, the CBC, pay audio, and satellite radio at present pay CSI when they reproduce works in our repertoire.

Since 1997, the act has required payment only if a blanket licence is available. A single payment licenses the millions of works in our repertoire.

Broadcasters pay CSI either pursuant to tariffs certified by the Copyright Board of Canada or through negotiated agreements. They paid CSI $17.6 million in 2009-10.

The commercial radio broadcasters want you to strip away our rights. Why? They'll tell you that the copies they make are worthless. That's nonsense. Expert evidence, accepted by the Copyright Board, extensively documented the benefits that broadcasters receive from these copies. For one example, through voice tracking, broadcasters can produce a four-hour program in just 20 or 30 minutes.

They'll tell you that it's unreasonable and unsustainable to continue paying seven-tenths of one percent of their earnings for the right to make copies. Unreasonable? They pay 5.7% of their revenue to all collectives for the music that makes up 80% of their programming. Unsustainable? When the commercial radio tariff was introduced, the industry enjoyed average pre-tax margins of 10%. In 2009, in a severe recession, their margin was 21.2%.

And there's this: the broadcasters want a double standard. They license the reproduction rights in their broadcast programs to media monitoring companies. They receive a royalty of 10%, and for 2011 to 2013 they want a 40% increase, to 14%, ten times higher than the 1.4% they themselves pay to reproduce music, seven-tenths of a percent for songs and seven-tenths of a percent for recordings.

There's no similar exception that applies to Canadian broadcasters' reproduction rights.

However, even if the broadcast mechanical right were left as it is, other provisions in Bill C-32 would undermine the rights of our members. Alain Lauzon will speak to those other provisions in the bill.

[The Acting Chair, Conservative, Maxime Bernier]

Good morning, everyone, and welcome to the 18th meeting the of Legislative Committee on Bill C-32.

Pursuant to the order of reference of Friday, November 5, 2010, today we are continuing our study of Bill C-32, An Act to amend the Copyright Act.

In the first hour, by videoconference from Dubai, we have with us Ms. Margaret Atwood, writer. She is testifying as an individual.

I hope you can hear us.

Copyright

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Mr. Speaker, I am honoured to present a petition signed by over 1,200 people in my riding alone, calling on all parliamentarians to amend Bill C-32 on copyright, to restore balance. In its current form, the bill inordinately benefits big business, to the detriment of our artists.

Some artists came to Ottawa in their tour buses. At the time, members of the opposition parties, including the Liberal Party, said they would support the artists' demands. Unfortunately, the leader of the Liberal Party has since withdrawn his support. He changed his mind. I hope this petition will convince him to go back to his original stand.

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

Well, I think it would be a fascinating discussion, and I would love to have him before our committee.

I am concerned, as Mr. Rodriguez said, about the precedent, because if we agree to this, then next week I might find someone from the artistic community who I think is absolutely special and bring them in, and then they would get turned down. We end up leaving the other witnesses in a position of being embarrassed or of being treated as seemingly second-class if some people are pushed by special motion to the head of the line and other people are told to wait or not heard at all, so I think we should stay the course.

It would be a fascinating discussion, and maybe at our heritage committee at one point we will invite him and follow up on this issue, but we have to stay the course on Bill C-32.

[The Acting Chair, Conservative, Maxime Bernier]

We are now going to continue the work of the legislative committee on Bill C-32. We are going to look at Carole Lavallée's motion.

Mrs. Lavallée, I will give you the floor so that you can speak to the motion.

[Serge Cardin, Bloc, Sherbrooke, QC]

Two minutes? You are generous, Mr. Chair.

Good afternoon, gentlemen.

In your brief, you have said the following:

I have often said that copyright is to creativity like water is to humans: too little and you dehydrate and die, too much and you drown and die.

The Canadian Conference of the Arts has calculated the royalties creators would be losing under Bill C-32. The total comes out to $126 million, which is rather conservative. The creators will literally dry up. What do you think about that?

If we have enough time, could you tell us about the keys and how they could protect copyright, even though they are not owned by the authors or the copyright holders?

[David Fewer]

Yes. That Federal Court of Appeal case is incredible, in that the court actually looked at Bill C-32and said that the educational fair dealing amendment won't change the fairness analysis. So it won't have an impact on the business model. It won't have an impact on the need to pay royalties for those kinds of dealings. That supports my view.

The other thing that supports my view and that doesn't get a lot of attention is what happened across the border. In the United States, the fair use exception actually has within its four corners a provision that says multiple copies for classroom use can be fair use. That's the equivalent of the fair dealing provision. We don't have the multiple copies business in our educational fair dealing amendment.

But you know what? Even though the States does have the multiple copies business, universities in the States still pay royalties for casebooks. Money still comes across the border into Canada for course packs that are being copied in the United States and that include Canadian authors. If they're still paying royalties in the States with that incredibly lenient fair use provision, it's not going to happen here in Canada with a more limited educational fair dealing provision.

Regardless of that, if you go back to that first point, it's not fair. If it's not fair, it's not covered by educational fair dealing. I think that's the ultimate guarantee of the safety of educational fair dealing to authors.

[Ed Fast, Conservative, Abbotsford, BC]

I'd like to first of all address something that was raised by Ms. Lavallée. She didn't really give you an opportunity to comment extensively on that.

As you know, this bill moves us to legitimize more of what users do every day, whether it's time-shifting, format-shifting, mash-ups, and of course fair dealing, the education exemption. Ms. Lavallée—and I'm going to paraphrase her because I don't have the direct translation here—said that everyone agrees that it's a poor signal to send out if we expand fair dealing to include education.

There are some who have articulated that view here at committee. It has been a minority view, certainly not everyone. In fact, my impression is there has been overwhelming support for expanding fair dealing to reflect the realities of today's world—not only to reflect those realities but to ensure that Canadians have the ability to expand knowledge, to build on knowledge.

Perhaps you could comment. You spoke generally favourably of the educational exemption contained in Bill C-32. I'm assuming you do support it. Perhaps you could mention some of the benefits that we'll derive from fair dealing that includes an education exemption.

[David Fewer]

I have a quick comment on the user-generated content exception.

I don't have an issue with what you said. They all seem to be good responses to the phenomenon. The major point is that you don't want to have a situation where children at home are liable for copyright infringement because they're doing a version of a favourite song and uploading it to YouTube.

If we're going to look for a compensation mechanism, let us then look for one. But the worst system would be one that says it's an infringement and that our children are copyright infringers and liable for statutory damages for that activity.

This is a good thing. We should find a way to make it happen. Bill C-32 is one way to make it happen.

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

First, I think you are referring to user-generated content, which means that, under Bill C-32, consumers would be able to use artistic works without permission from and without compensation to the author. I must tell you now that, in France, SACEM, which defends the rights of songwriters and music publishers, has negotiated royalties with YouTube. It's sort of the same system you were talking about earlier.

When radio started, authors complained that their works were being used without compensation, and then radio stations ended up paying royalties. Similarly, YouTube is agreeing to pay royalties to collectives that ask them to pay, and that's great. Of course, consumers will have access, but eventually someone will have to pay. When consumers listen to the radio, they don't pay, but the radio station does. So the system is the same. We cannot give works to consumers by telling them: “You can use them without anyone paying royalties”. The system must absolutely rely on principles, such as making things available to the public—that's how it is with radio and it may also be like that with YouTube—so that someone pays the creators.

I personally think that this might be more obvious in French than in English. In English, you talk about copyright, which means the “right to copy” whereas, in French, we talk about droit des auteurs, meaning “the right of authors”. People are very jealous of Quebec's copyright system. We have a star system that works really well. We love our artists and we encourage them. It is not just a star system, but it is also an ecosystem that works very well for consumers, creators and distributors.

You mentioned the education system. In his brief, I think Mr. McOrmond compared royalties and copyright in education to government subsidies.

In Quebec, the royalties paid to authors by the education system work very well. No one has complained so far. Not only does the Minister of Education not complain, but she is criticizing Bill C-32 for trying to exempt the education sector from paying copyright. Everyone in Quebec thinks that's the wrong signal to send to young people. Young people have to be aware when they use creative works. There is no access problem in Quebec and, I would suspect, in the rest of Canada, but there is a problem with respecting artists and their work. It is about compensating them. If we want to wake up and still have artists and a vibrant, interesting and rich culture, the least we can do is pay the people who are responsible for that creativity, meaning the artists.

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

Thank you, Mr. Chair.

I'd like to begin by thanking both of the individuals who have come here today.

I'd like to start with Mr. Fewer.

First of all, I was certainly interested in hearing your views on the circumvention for non-infringing purposes of TPMs. That's a point of view that I share.

I would like to talk about a few other things that you didn't have a chance to talk about. You alluded to statutory damages, but I'd like to know what your opinion is of the statutory damages proposed in Bill C-32 as it is currently written.

[Russell McOrmond, As an Individual]

First, I offer my condolences to Gordon Brown.

If you have my brief, you actually have a partial transcript of what I'm about to say.

My name is Russell McOrmond. I'm the policy coordinator for CLUE, the Canadian Association for Open Source. I'm the co-coordinator of an organization called “Getting Open Source Logic INto Governments”. I'm the host for Digital Copyright Canada, which uses the domain name billc32.ca. I'm an independent software author and a technical consultant.

I coordinate a few petitions that have been tabled in Parliament. There's the petition for users' rights, which has had nearly 3,000 signatures tabled, and a petition for information technology property rights, which has had nearly 400 signatures tabled.

But I am here today as an individual. I do not envy you the job that is in front of you. Copyright is as complex as tax law and, as is the case in tax law, there can be both too little and too much. I have often said that copyright is to creativity as water is to humans: too little and you get dehydrated and die, too much and you drown and die.

A bill dedicated to the ratification of the 1996 WIPO treaties would have been complicated enough. The bill before you is an omnibus bill that includes many unrelated topics and it is unlikely you will have the time to adequately study the impacts of all of these topics.

Even though the bill has been passed at second reading, topics that are outside the bill have continued to be included in presentations and questions. I have created a set of frequently asked questions and answers at billc32.ca/FAQ. While I offer commentary and alternatives to many of the policy positions within the bill as well as topics outside the bill, today I must focus on my primary concern, which is information technology property rights. I have some props that I use. I've been doing this presentation for a few years.

I'm holding up four things. In one hand, I'm holding a DVD, which represents two things: some copyrighted content and the tangible medium it is stored on. These two things can have two different owners, and the rights of each should be respected. In my other hand, I hold some digital technology. It's my Google Nexus One phone, which represents hardware and software. Again, these can have two different owners: the copyright holder of the software and the owner of the information technology.

While you have been told that technical measures are entirely a matter of copyrighted content, real-world technology works quite differently. It is not possible to understand the impact of Bill C-32 in real-world scenarios without a better understanding of that technology.

On the content side, it is possible to encrypt content such that it can be accessed only if you have the right keys. I have here one example of an access control.

I discuss in my Bill C-32 FAQ how access is a novel concept in copyright, and how protecting access and access controls effectively creates an opt-out of the rest of the Copyright Act for those who make use of access controls. I also discuss how legal protection for access controls in copyright law can be abused to circumvent the traditional contours of contract, e-commerce, privacy, trade, and consumer protection and property law.

Content cannot itself make decisions such as whether it can be copied or how many times, or any of the other things that copyright holders might like to encode in their licence agreements. Content alone cannot make decisions any more than a paperback book is capable of reading itself out loud. Any decisions that are made are encoded in software that runs on computing hardware. What are often called “use controls” in the context of copyright are nearly always software running on computing hardware.

It is critical, therefore, to think not only about the interests of the copyright holders of content, but also about the interests of software authors and the owners of information technology.

I am a software author. Before copyright can offer me anything, I need to ensure that the owners of technology have the right to make their own software choices. If they are not able to make their own software choices, how can they possibly choose my software? This means that IT property rights, including the rights of owners to make their own software choices, are far more important to software authors than copyright.

Let's talk about some real-world technology examples. This DVD here has an access control applied to it--notice that I said “access control”--called “the DVD content scrambling system”. The keys for this type of digital lock are managed by the DVD Copy Control Association. It is important not to let the title of the organization confuse you into thinking that this is a copy-control or a use-control technical measure, as it is not. The DVD Copy Control Association is an association made up of major studios, major hardware manufacturers, and major software vendors. This organization negotiates what features will be allowed in hardware and software that will be given keys capable of unlocking the access control applied to the content. It is the contractual relationship between these major vendors--not copyright--that this access control is protecting.

If you are a competitor of the members of the DVD CCA, or for any reason cannot sign on to their contractual obligations, you will not receive the keys to encode your own content or decode content. It should be reviewed by the Competition Bureau to determine whether such contractual obligations should be allowed. Tying the ability to access content encoded with DVD CCA keys requiring a DVD CCA-approved access device seems like a textbook example of “tied selling” under section 77 of the Competition Act.

Any time you hear the word “lock”, you must always ask who manages the keys. It is not the owner that is in control but the entity who manages the keys. In most real-world examples of technical measures, copyright holders do not control the keys to locked content. They are sometimes but not always given the choice about whether it is locked or not, but not much control beyond that. In the case of locks on hardware and software, the keys are specifically denied to the owners of the hardware. The purpose of the lock is to lock the owner out of what they own.

For no other type of property would this be considered. We would never legally protect non-owner locks to all guns in a country where many are uncomfortable with the mere registration of long guns. We would never legally protect non-owner locks on our homes, alleging it was necessary to protect the insurance industry from fraud. We would never legally protect non-owner locks on our cars, allegedly to ensure that automobiles could never be used as a getaway vehicle.

[David Fewer, Director, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic]

Merci beaucoup.

CIPPIC is the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. We are a technology law clinic in the Faculty of Law, housed in the Centre for Law, Technology and Society at the University of Ottawa. Our mandate is to advocate for balance in policy- and law-making processes and to provide legal assistance to under-represented organizations and individuals on matters arising at the intersection of law and technology.

CIPPIC has participated in policy debates around copyright since our founding in 2003, with a view towards ensuring Canadian copyright law maintains a balance among the competing interests of authors, owners, distributors, consumers, downstream creators, and innovators.

Thank you very much for inviting me here.

In practice, our advocacy has involved us in representing consumer interests and also creator interests on various files. For example, some of our current work includes acting with the Documentary Organization of Canada, the documentary filmmakers, in assisting them in preparing guidelines for working with fair dealing. We work with Canadian independent authors on the Google books settlement, which is a large class action that involves authors all over the world and is taking place in the United States. We are working with the Songwriters Association of Canada in supporting their efforts to get compensated for unauthorized peer-to-peer file sharing.

These efforts have provided us with I think a nuanced view about copyright. I'm hoping that view informs your deliberations.

I'd like to begin by complimenting this government on Bill C-32. This bill demonstrates to me that the government was in fact listening to all Canadians during the copyright consultations of the summer of 2009. The bill represents what in my view is a real attempt to accommodate multiple perspectives on copyright. That's not something that can be said about every copyright bill that we've seen in recent history.

I will organize my brief comments around three principles and argue that where this bill succeeds, it vindicates these principles, and where it fails, it violates them.

First, copyright ought to reflect the reality of Canadians' everyday ordinary dealings with content. Bill C-32's time-shifting, backup, and private copying exceptions respect this principle. The bill has finally legalized the VCR, something that took a very long time to do. It also has legalized the iPod and other consumer technologies.

This principle is also consistent with Bill C-32's recognition that parody, satire, and educational fair dealings--“fair” dealings, dealings that are “fair”--ought not to infringe copyright, and that user-generated content is a celebration of creativity, not a threat to it.

Where the bill of course violates this principle is in its anti-circumvention provisions, the most controversial and, in our submission, unbalanced portions of the bill. As the provisions are drafted now, many, many legal activities would become illegal merely because one has to circumvent the digital lock to do it.

This has the perverse effect of locking many creators away from the content they need to create. Consider documentary filmmakers: how do they source content behind a digital lock? News organizations: what happens to the six o'clock news in the future when more and more content goes online, goes digital, and goes behind digital locks?

Why on earth are we making the lives of these creators and these organizations more difficult? CIPPIC advocates permitting circumvention for non-infringing purposes.

The second principle is that copyright enforcement ought to be directed at actors that destroy wealth and undermine creativity, not at children, not at downstream creators and innovators, and not at public institutions like libraries, schools, archives, and museums. In short, copyright litigation should never become a business model in Canada.

Mass litigation against consumers and small businesses is an abuse of our publicly funded judicial system. These are taxpayer resources we're talking about.

Our copyright legislation ought to provide incentives to engage consumers through innovation in the marketplace, not through litigation. Accordingly, CIPPIC supports Bill C-32's reforms on statutory damages, which seek to do just that.

These reforms could go further. I don't understand why we have statutory damages that include in their target public institutions like libraries, museums, or archives. These are organizations that operate in the public interest. They ought to be free of the coercive influence of statutory damages.

Similarly, CIPPIC endorses Bill C-32's efforts to give rights holders the tools to discipline bad actors who seek to profit through active promotion of piracy. Such laws are technologically neutral and do not confuse digital infrastructure with the promotion of piracy.

Third, copyright ought to recognize the full range of creators and innovators that participate in Canada's cultural and economic life, and CIPPIC is supportive of Bill C-32's recognition of this reality.

Consider the ISP liability and search location liability provisions. The bill's treatment of these entities, for example, recognizes the value of content-neutral technology to Canadians and so provides incentives for continued investment in innovation.

The bill also offers particular expansions of creator rights that serve the public interest. For example, CIPPIC supports Bill C-32's creation of moral rights to performers.

Similarly, CIPPIC is supportive of much of the treatment given photographers under the legislation, but not all of it. One area in particular that we have a great concern around is the elimination of the commissioned photograph rule. This is a provision that hasn't received a great deal of attention before this committee, and I think it deserves some attention.

Right now, the law is that we all enjoy copyright in the photographs we commission. These are our wedding photos, our baby photos, our graduation photos, and our anniversary photos, these kinds of things. That accords with our reasonable expectations. We've hired the photographer. We've created the occasion for which the photographs are taken. Our expectation is that we'll own the photographs, and that includes the copyright in the photographs.

Under Bill C-32, unfortunately, this rule is reversed. Now, a consumer who wants to own copyright will have to negotiate for it, but unfortunately, most consumers just aren't sophisticated enough. They don't know that copyright is an issue. Their legitimate expectation, their reasonable expectation, is violated.

They don't know that it's an issue they now have to bargain for, so they won't bargain for it, and then mischief will arise. This is the single most privacy-invasive, anti-consumer portion of the bill and is one that CIPPIC would like to see addressed.

[Paul Larche]

Several rights holders have emerged over the last 10 or 11 years that keep adding to what was already being paid. You're right, the output has always been the same. As I said before, I was paying 3.2%, and now I'm paying just under 9% in various rights. Various collectives have come forward and have gone to the Copyright Board and have argued that they should be getting more money from the broadcasters, just as our colleagues are over here, and those fees have passed.

This particular one--the one we're talking about today that is in the copyright bill, Bill C-32, which we wholeheartedly believe in and think should pass--was recognizing an unfairness that wasn't there before.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

I thought Mr. Rafferty was on the right track here.

Gentlemen, thank you for being here. I think you've have articulated what millions of consumers across Canada know, and that is when they buy a CD, and pay money for it, they should be entitled to transfer that to their iPod, their iPad, their desktop through Apple TV, or any other medium they are using for personal use, BlackBerrys or whatever. They understand that when they have paid for it once, they shouldn't repeatedly have to pay for it again, when they transfer it.

Somehow my Liberal, NDP, and Bloc friends don't get that. They want to impose on your industry a different standard...that our consumers understand. This act actually goes that extra step and says to consumers, “You know what you've been doing in the past anyways? You understand what's involved. We're going to actually make that legal so you can transfer from one medium to another, provided it is for your personal use.”

Now, you were present when Mr. McTeague made a statement that I will try to quote exactly. He said there was “nothing for creators” in Bill C-32. I was here on Tuesday, two days ago. We had the Canadian recording industry represented here. They told us to please pass the bill, because it creates new protections for creators. They asked to please get this passed as quickly as possible.

They went further when Mr. Angus from the NDP tried to provoke them into making a big deal out of the removal of ephemeral rights, making sure there wasn't a duplication of payments to broadcasters. The representatives from the recording industry said, listen, our house is burning down. The solution is not ephemeral rights. There is a much bigger picture to it. They said that what is in the bill right now goes a long way to establishing more robust protection for creators.

There is a suggestion here that somehow creators are losing revenue. Yet some of the evidence we've heard is that most of the money that comes from reproduction payments doesn't go to the creators at all. Most of it goes to other parties. Can you comment?

[Paul Larche]

Yes.

Private broadcasters are pleased with Bill C-32, and we're hopeful that this committee will work together to pass it.

I thank you for the opportunity.

[Ross Davies, Vice-President, Programming and Operations, Haliburton Broadcasting Group Inc.]

Good afternoon. My name is Ross Davies. I'm the vice-president of programming and operations for Haliburton Broadcasting Group Inc., based in Toronto, Ontario.

I'd like to thank you for inviting us to speak here today.

I am a life-long broadcaster. Having followed in the footsteps of my late father, I grew up in this business. During my career I've held key programming positions in Canadian radio. Like most people in broadcasting, I started at the ground floor, working in various tasks in the programming area, which included on-air announcing, music programming, and program management.

I spent over 20 years at CHUM Limited. I was fortunate to ultimately advance to the position of vice-president of programming for CHUM Group Radio, responsible for all its radio stations across the country.

I am the former vice-president of programming for Astral Media Radio GP, and I spent two years in the satellite radio business helping to launch XM Satellite Radio in Canada, in 2005.

I've also operated my own broadcast consulting firm representing a number of clients in Canada, including Standard Radio, Maritime Broadcasting, and Haliburton Broadcasting.

I am the past president of the Ontario Association of Broadcasters. I was the inaugural chair of the Radio Starmaker Fund and the former first vice-president of the Canadian Academy of Recording Arts and Sciences, CARAS. I still remain a member of MusiCounts, the music education committee for CARAS, and I once again sit on the board of directors for the OAB.

My position with Haliburton Broadcasting has brought me full circle in the radio business. After many years in the corporate office, I have returned to true grassroots radio, spending my days hand in hand with the people in our company, making our radio stations compelling, entertaining, and relevant to each of the communities we serve in Ontario. It has been a remarkable experience for me to once again see first-hand how vital local radio is in this country.

Haliburton has 18 radio stations, located in communities throughout north, central, and southern Ontario, reaching thousands of listeners each day.

Each year, for the past five years, our company has produced a new CD featuring up-and-coming local artists from our listening area. Virtually all of these artists are without a record deal. Our Moose Trax CD features 10 to 12 local artists and their songs. Not only do we promote the availability of this CD to the public for purchase, we also feature the songs on all of our stations, providing exposure throughout Ontario.

As my colleagues have said to you today, we support Bill C-32. Copyright reform is necessary and urgent, and we urge this committee to pass this bill.

Local radio is the strongest marketing tool for Canadian artists and music. This role needs to be recognized by government and the Canadian music industry.

Local radio is one of the most important and influential media today as it relates to local and community matters.

We understand paying to broadcast the music, but it's not fair to pay five times for the same thing. The cost of copyright has gone up 500% since 2001. This is endangering our business. In fact in some of our smallest radio markets, the reproduction tariff obligation represents the difference between being able to keep our stations on the air or not.

The bottom line: local radio matters to Canadians. It needs to be supported, and we need the broadcaster exception to stay in Bill C-32.

I'm going to leave you with some examples of direct contributions that broadcasters make within their own communities to local events and initiatives supporting the music industry, nurturing community interest in musical artists.

Here are some of the many music industry initiatives the CAB radio station members have supported this last year: the Winnipeg Jazz Festival; Kitchener-Waterloo Oktoberfest concert series; the City of Pembroke music festival; the Waterloo Region District School Board, for purchase of new instruments and sheet music; the Mariposa Folk Festival; RNC Media-Antenne 6 bursary program, to support students from the journalism program of Collège de Jonquière; the Western Canadian Music Awards; Les Rencontres de I' ADISQ; North by Northeast; MusiCounts, the music education program from CARAS; and FanFest at Canadian Music Week.

Private radio makes a real and substantial contribution to Canadian artists. The broadcaster exception in Bill C-32 will ensure that we can continue to do so.

Thank you.

[Guy Banville, Radio Consultant, As an Individual]

Good afternoon. My name is Guy Banville. For 37 years, my career has focused essentially on my role as a program director at radio stations in Quebec and France. Whether in the dance music format of the 1980s, the RockDétente format that I created with an amazing team in Quebec in 1990, the national program of the 190 radio stations in the Europe2 network in France, or the Quebec radio stations of the RNC Media group in recent years, I realize that the design of all these radio offerings to date has been indissociable from the development of Quebec artists.

I know that you've heard a lot about Quebec artists, but perhaps a little less about Quebec broadcasters. So I thank you for giving us the opportunity to appear before you today to add the voice of Quebec broadcasters to the discussion.

I'm used to saying that record producers are gardeners, that artists are flowers and that radio stations are perfume makers. We like the flowers we select, and we offer them to our listeners, who sometimes, even very often, go out and buy the perfume. We pay a portion of our incomes to the gardeners.

With its contribution to the development of Canadian content and its copyright royalties, radio takes part in the artistic development of Quebec artists. Its contribution is not always quantified, such as when it broadcasts promotional interviews or sponsors shows and festivals. In Quebec, 65% of what we broadcast is francophone music, mostly Quebec music. That gives you an idea of the enormous presence of Quebec artists on our airwaves.

Today, Quebec radio is facing major challenges, and those challenges are the same for large and small radio stations alike. I'm going to name two.

First, Quebec radio must invest extensively in technological tools in order to prepare for the migration of content to the new digital platforms. It also has to deploy considerable resources and money to develop radio hosting talent because we believe the future of radio depends on the human voice. After all, that's what differentiates us from other music platforms.

However, radio personalities, that is to say radio hosts, who we think are also artists, have to develop unprecedented technological adjustment ability. In addition to communicating well on air, they must, for example, be agile in their use of social media and digital archives. In view of these challenges, we fear there will be a significant increase in our production costs. That's part of our situation. In view of the fact that the number of radio services based in Quebec is higher than the number of Quebec operators, any increase in copyright royalties would result in a net outflow of money from Quebec to international recipients. I understood what was stated earlier.

Quebec broadcasters, both big and small, support Bill C-32. We believe this bill represents a serious step toward the adoption of a sensible copyright system in the Internet and digital technology era. The current Copyright Act is obsolete and impractical in the digital economy. From the broadcasters' standpoint, it creates a climate of uncertainty at a time when we are improving our services. It also creates numerous royalty levels for what is essentially a single activity, music broadcasting.

In many industries, users of copyright-protected works are required to make copies, given the various digital technologies currently in use. Copies made by broadcasters are simply an incidental factor in the process of broadcasting music. Including an exemption for reproductions made by broadcasters acknowledges their incidental and technical nature.

The amendments being proposed by broadcasters are consistent with the general aim of Bill C-32 to limit royalties relating to a number of technical processes, such as the provision enabling consumers to record programs for later listening or viewing, which is essentially an exception to the broadcaster's right to fix its signal.

Broadcasters support an approach based on the principles for the adoption of exemptions for incidental reproductions. Broadcasters support Bill C-32. Quebec broadcasters support Bill C-32.

I'm going to ask Mr. Ross Davies to continue.

[The Acting Chair, Conservative, Maxime Bernier]

Good afternoon. Welcome to our guests. We'll now continue our meeting on Bill C-32.

Today we're pleased to have the radio consultant, Mr. Guy Banville, testifying as an individual, and Mr. Paul Larche, president of Larche Communication Inc. Thank you for being with us. We also have Mr. Ross Davies, vice-president for programming and operations at Haliburton Broadcasting Group Inc. Thank you for being with us.

Every participant will have five minutes to make a presentation. Then committee members will be able to ask questions.

I will give the floor to Mr. Banville for five minutes.

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

Thank you very much, Mr. Chairman.

Welcome to you all. I'm pleased to welcome you here this morning.

First of all, I want to tell you that I read your briefs in full, particularly yours, Ms. Courtemanche, from the Canadian Association of Broadcasters.

I read it carefully and analyzed it. I saw that you said it was essential that Bill C-32 be adopted. The Bloc québécois also believes that passing a bill designed to modernize the Copyright Act is essential, after 15 or 16 years of an old model that no longer corresponds to today's habits and which is not suited to the Internet or the digital universe. We have to change that act as soon as possible, but the bill must nevertheless be balanced. You say it's essential to pass it. I entirely agree with you.

You say the radio stations and broadcasters generally are enriching agents in our society. You're entirely right. You're important for the Canadian and Quebec economies. You have an immensely important role in the star system of Quebec and no doubt of Canada, which I know less, and I apologize for that. You are brilliant business people who are successful. Revenue of $6.58 billion isn't nothing. We congratulate you on your profits of $1.5 billion.

You say you represent 600 radio stations and 10,500 employees, to whom you pay $612 million. You're enjoying good success, and we're proud of that. We encourage you to continue. You're having major success and, no doubt, minor failures, like all the major industrial sectors.

We could discuss the principle of the $21 million you're asking not to pay. We could do that. I have arguments, whereas you say it goes to foreign multibillionaires. It should not be forgotten that there is reciprocity. Other countries pay royalties to our artists. You say the small radio stations bear an incredible burden. We know they have to complete a form every month and send five cheques. I don't want to go back over each of those arguments, but I want to talk to you about the principle of Bill C-32 which is unbalanced.

Your approach, your testimony and your brief are the perfect illustration of that. There are others, of course, but what you're saying about this is one of the best examples we can cite. You pay $21 million in royalties for what's called ephemeral recording and you don't want to pay for that. That's not in Bill C-32, and you're quite pleased about that. That $21 million amount inflates your profits, which are already respectable, and you want to take that money away from the artists, the crafts people and the people who will be making other cultural productions and artistic creations. That makes no sense. You're one of the examples, but we could cite others, for the $126 million that's taken away from artists.

I'd like you, Ms. Courtemanche, and anyone who wants to speak, to talk to me about the principle of this bill which is unbalanced in favour of the industry and against artists, as you've just demonstrated.

[Mike Keller, Vice-President, Industry Affairs, Newcap Radio Inc.]

Thank you, Brad.

My name is Mike Keller. I'm vice-president of industry affairs at Newcap Broadcasting. I've been working in the broadcasting industry, in both television and radio, for my entire career, starting in 1971, at MCTV in northern Ontario, then at Baton Broadcasting, CHUM, and now Newcap Broadcasting.

I'm currently on the board of directors of the Canadian Association of Broadcasters, and I've held positions on the boards of the Bureau of Broadcast Measurement, the Television Bureau of Canada, and the Radio Marketing Bureau.

Newcap is an Atlantic Canada success story. It now has the second largest complement of radio stations in Canada--75--serving 56 communities, from large cities, such as Ottawa, Edmonton, and Calgary, to tiny villages, such as Springdale, Newfoundland, and Blairmore, Alberta. Over 800 employees come to work at Newcap each day and make their communities better places to live. We are the largest radio operator in Atlantic Canada and the Maritimes.

As has been noted, I'm going to further illustrate the depth of contribution that Canadian broadcasters make to the music community in Canada. Broadcasters provide publicity and direct cash investments for musicians. This is done across the industry through such programs as the Big Money Shot in our Ottawa station, Live 88.5, which invests $500,000 worth of grants in Ottawa area artists every year. Through this program, Newcap Radio has already added 10 artists in full rotation and 100 artists in feature spins on its radio stations, putting unsigned Canadian artists on air alongside the world's most popular musicians.

We also have a program called Rock Star, in Calgary, that provides $500,000 in direct funding to local artists to help them tap into financial and management resources to bring their musical aspirations to the next level and beyond. The unique financial coaching, mentoring, networking, and on-air resources of these Newcap stations have enabled local musicians to realize their dreams of launching successful careers as Canadian recording artists.

Newcap is there every step of the way, from song writing to recording, album production, performance coaching, touring, marketing, and ultimately cross-Canada airplay, both in full rotation and as feature spins that put these unsigned artists next to the world's best recording artists.

Over a 10-year period, Newcap alone has contributed over $30 million in contributions to CCD, $5.7 million to FACTOR, $8.5 million to Starmaker, and another $16 million to local artists and initiatives.

In just the last year, private broadcasters as a whole contributed $51 million to CCD through programs like FACTOR, MusicAction, and the Radio Starmaker Fund. On top of these investments in local communities and artists, private radio broadcasters are also paying $64 million, which is growing every year, in copyright royalties to authors, composers, publishers, performers, and makers of sound recordings for broadcast. This copyright payment will not be affected by Bill C-32.

It has been said that granting the broadcaster an exception will mean that broadcasters will get a free ride. We think that contributing over $115 million to artists in a single year is hardly a free ride. We believe that we are doing an exceptional job in our support of Canadian artists. In reality, broadcasters are an essential catalyst for the success of artists. The broadcasting industry must remain healthy in order to continue to provide this tremendous level of support for Canadian artists.

Thank you for the opportunity to appear before you today. We are happy to answer any questions you might have.

[Sylvie Courtemanche, Chair, Canadian Association of Broadcasters]

Thank you for inviting us to appear before this committee to talk about this important piece of legislation.

I am here as chair of the Canadian Association of Broadcasters, an association that represents over 600 private radio stations across the country. We also represent the vast majority of television services in Canada. I am also vice-president, government relations, of Corus Entertainment Inc., one of Canada's leading media companies and Canadian content producers.

Copyright reform is necessary and urgent. Private broadcasters support Bill C-32. We believe this bill demonstrates a great effort on the part of the government to arrive at a balanced solution that provides something for everyone. We strongly support passage of this important piece of legislation.

Bill C-32 contains important clarifications of the broadcast incidental reproduction provision that recognize the unfair and unsustainable burden borne by broadcasters. We'd like to take this opportunity to explain to you why it is essential that this provision remain in the bill.

The proposed amendments to section 30.9 of the Copyright Act provide broadcasters with the right to operate their businesses in the digital economy without unfair and irrational duplication of their copyright liability. Some of you may remember that this exception was introduced in 1997 in the last Bill C-32. The very same collectives that have appeared before this committee appeared then and told the heritage committee:

Music publishers recognize that such copying [meaning radio's transfers of format] is integral to the operation of radio stations, and also realize that any publisher foolish enough to demand payment for such copying would likely find himself frozen out of the station's playlist in short order.

On this basis, an amendment to the ephemeral exception provision that effectively nullified the exception for broadcasters was introduced. Starting in 2001, the same collective who told the heritage committee it would be foolish to seek payment for incidental reproductions took advantage of the new statutory framework and sought and was granted a tariff payable by radio.

Today, radio is still paying that tariff to the music publishers, but at a higher rate. And radio is also paying two additional reproduction tariffs: one to the multibillion-dollar foreign record companies; and one of a much smaller amount, less than $200,000, to actual performers. This brings the total liability for something that all parties agreed should never be compensated to $21 million a year. We have heard many incorrect statements relating to the $21 million that the reproduction right is currently worth, but one truth is unequivocal: broadcasters make no money from the act of reproducing music content for the purposes of facilitating the broadcast of music.

We've heard members of this committee say that the $21 million would be carved out of income of artists. That is simply not accurate. We'd now like to explain to you how that $21 million actually breaks down.

It is important to understand how this $21 million is filtered through a complex collective licensing system that deducts large amounts for the overhead and legal costs of the collective society administering the tariff and for distribution to foreign record labels and publishing houses, before any of it ends up with the artists themselves.

Of the total $21 million, approximately $10 million goes to the multibillion-dollar foreign record labels. An estimated $1.1 million is deducted for overhead and administrative costs for the five collectives involved. Approximately $6.4 million goes to foreign rights holders, which leaves $3.5 million to be shared among the publishing houses, which are not necessarily Canadian, and the artists. We've provided the breakdown of this amount in our brief.

While the record companies and the publishing houses will tell you that the broadcaster exemption takes money away from artists, the truth is that it will take money away from multibillion-dollar foreign companies. In fact, the broadcaster exemption will make it possible to keep the money in the hands of 100% Canadian companies that invest substantially in their communities and in Canadian artists.

We want to emphasize that broadcasters are not opposed to paying for the communication right.

Private broadcasters were very pleased to see the inclusion of amendments to section 30.9 in Bill C-32. We were further pleased by the government's explanation that the intention of this amendment was to ensure that radio broadcasters would no longer be required to compensate copyright owners for making reproductions in the context of their operations. However, we believe the current drafting may not fully reflect the intent to provide a full exception to the reproduction right liability.

Our suggested amendments are highly technical in nature and designed to promote technological neutrality, minimize confusion, and ensure consistency with the rest of the provision as well as the Copyright Act as a whole. We will undertake to provide our proposed amendments to the entire committee.

The broadcaster exception is necessary. It will bring Canada in line with our international trading partners. Canada is one of a small minority of industrialized countries that still does not have a broadcaster exception. It will recognize the truly technical nature of the in-station reproductions.

Thank you for the opportunity to appear before you today.

I'll now leave my friends from Astral and Newcap to explain how broadcasters contribute to their local communities and help Canadian artists.

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

Yes, the multinationals. In any case, many of their demands are reflected in Bill C-32. On the other hand, the Canadian Conference of the Arts has established that the artists will be losing $126 million. First of all, there is $30 million for private copying. I'm not going to list all the losses, because you are well aware of them. There are also those associated with ephemeral recordings and the exemption for the education sector. As for user-generated content, I'm sure you know that in France, the SACEM, which is a copyright collective, has succeeded in negotiating royalties with YouTube for user-generated content, something that would be impossible here given the exemption granted under Bill C-32, if it is not changed.

In terms of specific changes—I invite each of you to take as much time as you need, and the others will have an opportunity to answer later on—which amendments are most critical, in your opinion?

Ms. Drouin.

[Greg Johnston, Treasurer, Songwriters Association of Canada]

My name is Greg Johnston. I'm a songwriter and the treasurer of the Songwriters Association of Canada.

I'm a 40-year-old. I have a wife, two kids, a car, and I live in downtown Toronto. I volunteer, shop for groceries, pay taxes, and I vote. I studied music at both Simon Fraser University and Grant MacEwan College. I had student loans and I paid them off. I picked a career, I was educated for it, and I'm really good at what I do.

I've worked with artists such as Olivia Newton-John, Marc Jordan, Ron Sexsmith, Hawksley Workman, and Nick Lachey, to name a few. Unlike my friend and colleague Mr. Vallance, my songs have not sold over 100 million copies, and unless drastic measures are taken, songwriters of my generation will never have the chance. In fact, despite my education, talent, and success, I may have no choice but to leave the profession entirely.

Some may say “That's life”, something I would be willing to accept but for the fact that our songs have never been more popular. They're on your radio when you drive to work. They encourage you on the treadmill. They play at your daughter's wedding. They help to sell shoes, toothpaste, life insurance, and they've even helped the odd political campaign.

The solution to our industry's dilemma lies in the monetization of music file sharing. To reiterate what Jim Vallance said, a mutually beneficial partnership with the ISPs would allow consumers access to our work in the way they are now accustomed to. Rights holders would be remunerated, success would be rewarded, and fair business practice would be restored.

To this end, Bill C-32 has nothing to offer. Bill C-32, as written, opens the doors to years of lawsuits with regard to the definition of fair dealing.

The last decade has been a period of rapid decline for our industry. Forcing music creators to, in essence, sue for their supper only increases our financial hardship. It solves none of the basic problems we face.

Digital locks and lawsuits, as well as other repressive measures, are a well-worn path at this point, and they have proven to largely be a dead end.

We at the SAC support the private copy levy as a part of a comprehensive plan to remunerate music creators for our work. While helpful to creators, the levy in and of itself is not a comprehensive solution, and it should not be seen as such.

With blank CD sales declining annually, and the failure of Bill C-32 to extend the levy to devices like the iPod, this legislation offers little hope for our future.

In conclusion, we at the SAC are grateful for this opportunity to appear before the committee. We sincerely hope our input will be helpful in amending this crucial legislation so that it may foster an enlightened and profitable Canadian music industry.

Thank you.

[Victor Davies, Director, Board of Directors, Society of Composers, Authors and Music Publishers of Canada]

My name is Victor Davies. I'm a music composer and I serve on the SOCAN board of directors.

As Gilles mentioned, SOCAN represents music composers, authors, and publishers. Please note that we do not represent record companies, and they do not represent us.

I would like to discuss two issues: digital locks and exceptions.

First of all, we respect the right of other copyright owners to use digital locks to protect their works if they so desire. However, SOCAN's business model is not based on blocking access with digital locks. Instead, SOCAN's mandate is to provide access to the world's music repertoire and to collect royalties determined by the Copyright Board of Canada for these uses. Therefore, although digital locks may help some copyright owners, they do not directly help SOCAN.

Second, we oppose Bill C-32's many exceptions, because they allow users to use our valuable intellectual property but we do not get paid.

[Paul Spurgeon, Vice-President, Legal Services and General Counsel, Society of Composers, Authors and Music Publishers of Canada]

Good afternoon, Mr. Chairman and members of Parliament.

My name is Paul Spurgeon, and I'm SOCAN's general counsel.

I understand you have a copy of SOCAN's 16-page November 19 submission. Also I have left with the clerk a copy of a document, the WIPO study on limitations and exceptions, which I think you will find very interesting, especially if you refer to pages 74 to 80. It might help in your understanding of the issue of exceptions and limitations. I have also left with you a copy of a four-pager on the three-step test, which I am principally going to speak to in my brief remarks.

Turning to the last page of our submission, we propose that clause 41 be amended by adding a simple interpretation provision, as follows:In interpreting any limitations or exceptions to copyright under Part III of the Act, the court shall ensure that such limitations or exceptions are confined to certain special cases, do not conflict with a normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the author, including the author’s right to equitable remuneration.

I have to point out that this amendment is simply based on the three-step test that Canada has already agreed to in international treaties and has ratified, and intends to ratify, including the Berne convention, to which we have been a signatory for decades, the World Trade Organization treaty, and the WIPO treaties, which you are about to hopefully implement and ratify when Bill C-32 is enacted.

Since Canada has already agreed to this three-step test in these treaties, there is no reason why it should not be included in the Copyright Act.

Thank you.

Victor.

[Gilles Valiquette, Director, Board of Directors, Society of Composers, Authors and Music Publishers of Canada]

Mr. Chairman, ladies and gentlemen members of the committee, good afternoon. My name is Gilles Valiquette and I am an author, composer and performer in Quebec. Today I am representing the Society of Composers, Authors and Music Publishers of Canada, better known as SOCAN. I am a member of the board of directors, a board which I chaired for five years, and with me today is my colleague, Victor Davies, who is also a composer and member of SOCAN's board of directors, as well as Paul Spurgeon, Vice-President, Legal Services and General Counsel for SOCAN.

Mr. Chairman, Bill C-32 is a very important bill as far as we are concerned. To help you understand our perspective, I should just point out that SOCAN is the Canadian collective that administers the performing rights, words and music, of more than 35,000 active Canadian members and all the members of its affiliate organizations around the world. That said, it is important to state that songwriters who spend days and weeks creating a musical work receive no advance payment for their work.

Furthermore, the social convention embedded in the Copyright Act gives artists the right to be remunerated if, and only if, their song is used. In other words, my colleagues and I are entrepreneurs who make songs, as opposed to furniture or cars. We take the risk that our work will be used and we agree not to be paid at that point. That is the agreement we have with our clientele.

It is critical that, in a spirit of national unity, Bill C-32 respect the two legal traditions associated with intellectual property, both copyright and le droit d'auteur or, more specifically, that it ensure that Canadians have access to copyrighted work while at the same time upholding the right of creators to compensation. As currently drafted, Bill C-32 completely disregards the fundamental rights which are the cornerstone of copyright in Canada. Let us not forget that Bill C-32 deals with intellectual property.

Mr. Chairman, ladies and gentlemen members of the committee, I very much appreciate this opportunity to address you directly as both an artist and creator. I am calling on you to make the amendments to the bill that we have suggested in our brief, in order to ensure that creators' rights will be respected and that the music industry will be able to continue to move forward on a daily basis.

Thank you very much. I would like to turn it over now to Mr. Paul Spurgeon.

[Luc Fortin, President, Guilde des musiciens et musiciennes du Québec]

My name is Luc Fortin and I am President of the Guilde des musiciens et musiciennes du Québec. I'm also a professional musician. With me today is Mr. Éric Lefebvre, Secretary-Treasurer of our association. Like l'ADISQ, we, too, signed the joint declaration of Canadian cultural industries on Bill C-32.

The Guilde des musiciens et musiciennes du Québec is a recognized association of artists that represents almost 3,500 professional musicians working all across Quebec. It is affiliated with the Canadian Federation of Musicians and its mission is to defend and promote the economic, social, moral and professional rights of performing musicians.

To begin with, we feel it's important to clearly state our position on Bill C-32. Unless there are major amendments to the bill, it should not be passed under any circumstances. It is true that the government is establishing some new rights for performing artists, such as the moral right and exclusive rights provided for under the WIPO Performances and Phonograms Treaty which, theoretically, place them on an equal footing with certain recognized authors' rights.

Yet what the framers of the bill are giving with the right hand, they are taking away with the left. What is the point of an exclusive “making available” right if the bill only confirms the lack of accountability for Internet service providers? How can anyone assert a reproduction right over a sound recording when broadcasting entities and educational institutions can reproduce works without prior authorization from the author, performer or producer, and without any applicable royalties for this kind of reproduction? The incalculable number of exceptions granted users essentially invalidates several exclusive rights currently held by rights holders. Some examples include the broadening of the “fair use” concept for purposes of education and parody, the exception for television recording timeshifting, the abolition of certain legal licences in the education sector, and the list goes on.

The Berne Convention provides that an exception should only be permitted “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” That is article 9. Bill C-32 does not abide by the Berne Convention in that it grants several exceptions which will in fact deprive creators and performers of remuneration, thereby violating their rights.

As regards Internet service providers, the government is indeed proposing a series of technical protection measures. However, the large record producers, known as “the majors”, who are actually the ones able to take such measures, have long since given up developing these costly measures, due to their extreme unpopularity. It is worth mentioning, for example, that the iTunes site removed all protection measures from its on-line catalogue two years ago.

Furthermore, the private copying regime, which enables authors, artists and producers to be compensated for violations of their reproduction rights, is on its way out. Nowadays, who actually continues to reproduce musical works on cassettes? As for CDs, they will soon be joining cassettes and diskettes on museum shelves, having been replaced by USB keys and digital audio players. Music is reproduced daily on millions of iPods and other similar digital players; however, the royalties are, unfortunately, collected for other formats, all of which are gradually disappearing.

Relying on propaganda, some are currently attempting to convince Canadians that the royalty for private copying is a tax, when it is actually compensation for actions that previously were deemed to be illegal.

Finally, we note that the legislation still has not granted rights to performing artists for audiovisual productions. Yet an artist's performance is of crucial importance, in terms of both commercializing a sound recording and marketing a film or television program. It is time that lawmakers responded to that demand, one that has already been recognized in several countries.

In conclusion, the passage of Bill C-32 would turn Canada into one of the countries that affords the least protection for creations and innovations involving intellectual property.

[Solange Drouin, Vice-President and Executive Director, Public Affairs, Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ)]

Mr. Chairman, members of the committee, on behalf of l'ADISQ, I would like to first thank you for inviting us to appear before you today.

L'ADISQ is a signatory to the joint declaration on Bill C-32 released by more than 80 groups representing the Canadian cultural community. Several of them have already appeared before the committee and made you aware of their many concerns with respect to Bill C-32, which would deprive content creators of revenues of more than $125 million. We share those concerns.

Since five minutes is not enough time to go over them all, we have decided to provide you with an overview which we hope will help you to understand why this bill is of critical importance for the development, sustainability and diversity of our different forms of cultural expression in Canada.

To begin with, I would like to briefly introduce the organization I represent. L'ADISQ is a professional association which represents independent record, performance and video producers in Quebec. An important fact to note is that these producers are responsible for 95% of the albums released by Quebec artists. What that means is that multinational record companies have minimal involvement in our local production in Quebec. Career development for Quebec artists is supported primarily by an independent industry made up of a number of small companies.

Sales for Quebec artists in their own market are remarkable. Year after year, almost 50% of the records sold in Quebec showcase Quebec artists.

In practice, this positive positioning in terms of sales of Quebec artists' work has had the effect of creating an environment which supports the sustainable development of artistic and entrepreneurial talent. What is even more important is that this has allowed the Canadian public to have access to a wealth of talent and a wide variety of music. Furthermore, from this wealth of talent has emerged a significant number of artists who are excellent ambassadors around the world. That is a very positive result which, unfortunately, does not tell the whole story. It does not show that, while Quebec artists' share of overall sales remains high, total sales have been dropping dramatically for several years now. In Quebec, we have gone from 13 million albums sold in 2004 to a little more than 9 million in 2010, a drop of 30% in six years.

All across Canada, the situation is equally alarming, if not more so. And it is unfortunately no different around the world. At the international level, according to IFPI, one of the consequences has been that, of the top 50 bestsellers, 77% fewer were first albums between 2003 and 2010. So, developing artists are the first victims of this dramatic downward trend, and the public is the big loser.

Surprisingly, at the same time, music has never been more a part of people's lives. Ways of securing it either legally or illegally are legion in the digital universe, and companies develop business models based on music with no significant return, and often, with no return whatsoever for content providers.

Why should I be telling you this today, when we're here to discuss copyright? Well, the Copyright Act is economic legislation. It sets the rules whereby rights holders will be remunerated when their creative works are used. Through your choices and decisions, you have the power to worsen the music industry's already dire situation or turn it around. In order to generate revenues that allow an adequate critical mass of artists to provide the Canadian public with access to a diversity of Canadian music, we must retain those tools now found in the legislation which are effective, and introduce similarly effective tools for the digital universe, as we did for the physical universe. With Bill C-32, we are completely missing the target.

The challenge is considerable. However, it is surmountable if the political will is there. France is an excellent example of that political will. This is only one example among many: France recently revised the royalties for private copying for USB keys, memory cards and hard disks, and it is seeking to establish a royalty for iPads. I would just remind you that here we are talking about ways of preventing royalties from being charged for MP3 players. Why are we so out of the step with what is being done elsewhere?

Furthermore, I would like to understand why the Conservative government, which often defends small business, is not supporting small cultural companies. It's important to remember that our culture is developed by these small companies.

[The Chair, Conservative, Gord Brown]

We'll call this 15th meeting of the special Legislative Committee on Bill C-32 back to order.

We have four groups: l'Association québécoise de l'industrie du disque, du spectacle et de la vidéo, ADISQ; la Guilde des musiciens et musiciennes du Québec; the Society of Composers, Authors and Music Publishers of Canada; as well as the Songwriters Association of Canada.

Each of those four groups will have five minutes.

We will start with the ADISQ.

Solange Drouin, cinq minutes.

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

Do you all take the same position as Mr. Dexter with respect to amendments to Bill C-32? Mr. Henderson, Ms. Davies and Mr. Ellson, have you seen this document? Since you seem to be saying you have not seen it, you don't know whether you agree.

Perhaps Mr. Dexter could address it with us, since he is well acquainted with the amendments he is suggesting. Are these amendments supported by everyone who is here today? Are these the amendments suggested by Balanced Copyright?

[Graham Henderson]

I would echo Mr. Dexter's point. Having listened to this committee now for a couple of months, my sense is that there is an evolving consensus out there. I hear it from...either there's been very specific changes that you've sought, many of which are in Mr. Dexter's document, and I keep hearing from this side that they're prepared to make amendments.

In its current form, exactly as it is, no, we wouldn't want Bill C-32 looking like it does now. But a form such as what Mr. Dexter has proposed--that's a form that I think works for everybody.

I've heard nothing from this side, necessarily, that I think would stop this committee from amending the document in such a way to take into account the concerns that have been raised by your party, as well as the Liberal document that was published before Christmas.

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

It's the document entitled “C-32 Amendments”, and it is signed by you.

You feel that C-32 requires some 14 amendments. Some of them are anything but minor. For one thing, you are suggesting doing away with the provision on user-generated content. You also suggest removing the exception for ephemeral recordings. You say as well that statutory damages should not be capped. In other words, there are a number of them here, and I don't intend to name all of them.

Do you believe that if Bill C-32 were to pass, it would effectively put an end to illegal downloading?

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

Witnesses, thank you for being here and for your very helpful commentary at a very critical juncture. The timing, I suspect, could not be better.

I have open-ended questions for all of you here, so whoever should want to answer should just come forward.

Bill C-32 would place a cap of $5,000 on statutory damages for all claims of rights holders where the infringement is deemed to be for non-commercial purposes. In your opinion, what effect would this change have on the actions of members of the public? Some of you have opined on this. Do you think this section actually needs amendment? If so, do you want to specify that?

Mr. Ellson.

[Grant Dexter, President, MapleMusic]

Thank you for giving me the opportunity to address the committee today.

I'll start by stating that we absolutely need this bill. I come here as a constituent of the independent music community, speaking on behalf of Canadian-owned companies involved in every aspect of music, sound recording, and music-related industries. I can tell you that without a doubt we have been severely impacted by piracy. That is why copyright reform is crucial.

However, Bill C-32 is not without its weaknesses. As you have heard from many witnesses, the technical drafting does not, in some cases, meet what it sets out to do. As an example, Minister Clement has said time and time again that Bill C-32 targets the “wealth destroyers”. But the way it's written, the isoHunts of this world will not be effectively brought to justice.

In many cases, the language of the bill is simply too broad to effectively meet its objectives. For instance, the enabling provisions--the single most important aspect of the bill to target the wealth destroyers--are written in a way that will surely allow isoHunt off the hook. I cannot imagine that is what the minister intended.

You have a one-page summary of our key recommendations, but I'd like to highlight a few.

Bill C-32 needs to separate the bad guys from the good guys, providing the good guys with safe harbour but not giving the bad guys refuge. The definition of these enablers must be tightened up so we can catch them, and the penalties must be high enough to deter them.

The Liberals have stated that the statutory damages need to be commensurate with the severity of the infringement. Currently they provide little or no deterrent to theft.

The “making available right” contains a fatal flaw that would require rights holders to file a tariff or get permission from the minister to exercise their rights. This cannot have been the intention. An earlier version of the copyright reform did not contain this flaw; therefore, it is easily fixed.

The user-generated content provision is written so broadly that individuals could post the entire MapleMusic catalogue of music and have a simple top and tail to qualify: MapleMusic is the best...all of our content...isn't this great? This law would allow them to do that.

The private copying exception is also very broad. While we do not object to consumers making copies of legally purchased music to their hard drive or iPods, the minister cannot have intended the iPod to become a filling station for the neighbourhood. This must be limited to reproduction of legal copies within their own households.

Finally, the same limit to legally purchased copies in the confines of the household can be said for time shifting.

The best outcome we could hope for is the restoration of a legitimate marketplace for creative products. With minor changes to avoid unintended consequences, Bill C-32 provides the copyright reform that is so desperately needed by the independent music sector in Canada.

Thank you.

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

Good morning, everyone. We're going to call to order this fifteenth meeting of the special Legislative Committee on Bill C-32.

Because of the votes today, we have a little bit of a change in plan. In terms of our first panel here, they understand that they're going to have a total of 15 minutes. We will then follow that up with one round of seven minutes each. In the second one, there will be five minutes for each of the groups, plus one seven-minute round.

We'll do our best to try to get this done by one o'clock. That said, I understand the room is available. With unanimous consent we might have a few minutes extra.

Mr. Del Mastro.

[Ed Fast, Conservative, Abbotsford, BC]

Okay. Let's talk about both, meaning those who are going to access the information they need.

Of course, not everyone in Canada is honest. There are going to be those who say that it's legal to buy this now, so I'm going to use these technological inventions to circumvent these digital locks. Because I'm not honest, I'm going to actually cheat, and now I'm breaking locks for a purpose not permitted under the act. Eventually you have this group within our society who are actually causing a problem for those who create the content and hold the copyright, which means it's much more expensive for them to enforce their rights.

I assume you've read Bill C-32, so you're aware that under clause 47, proposed item 41.21(2)(a)(iii) gives the minister a broad discretion to make regulations to ease up on some of those anti-circumvention provisions. I'd like to read at least that item for you, just for the record.

Proposed subsection 41.21(2) says:

The Governor in Council may make regulations

(a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having regard to the following factors:

(iii) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording,

That's what the bill says. Essentially what it says is that we understand that at this time you're not allowed to break digital locks, but the minister has the right to make the regulations; he doesn't have to go back to Parliament for a legislative change. As the industries develop, as we gain more experience with this new legislation, the minister has the flexibility to adapt and to pass regulations that allow industries such as yours to benefit from some of the content that you'd like to access and that digital locks prevent.

So you're aware of that legislation?

[Jill Golick, President, Writers Guild of Canada]

Bill C-32 undermines collective licensing. The introduction of proposed section 29.22 is only one example. Collective licensing, whether legislated or free market, is a very simple solution to so many of the issues facing us. It allows consumers easy access to content and it provides remuneration to the creators of that content. Collective licensing has been working well in many sectors for decades. I know this because I get cheques for secondary uses in other jurisdictions through the Canadian Screenwriters Collection Society. Collective licensing is a working model for consumers' use of content and creator compensation, and it should be the model we embrace in the digital world.

However, even if there is collective licensing for audiovisual works, as a screenwriter I would not be entitled to it, because the author of the audiovisual work is not defined in the Copyright Act or this bill.

Like photographers' rights, the lack of definition has been an anomaly from the beginning. The Writers Guild of Canada and the Directors Guild of Canada agree that the screenwriter and director are co-authors of the audiovisual work. This is the situation in many jurisdictions around the world. By failing to define authorship, the bill fails to offer audiovisual works the same protections as other works. For example, proposed section 41.22 protects rights management information, which allows us to track the use of our work and subsequently earn royalties around the world. Without a definition of authorship, this proposed section's prohibition against removing the author's identity is meaningless for audiovisual works. After 12 years and several rounds of copyright reform, it's time to recognize the screenwriter and the director as co-authors of the audiovisual work.

It has been said that this bill is good for creators because it gives us locks that we can use to protect our works against piracy. For the record, as creators we have no control over whether a lock is added. That's the decision of the copyright owners, and while digital locks may preserve the existing business models for a time, the patterns of distribution are changing. Even owners may not realize the full value of the work. Protection against piracy only addresses part of the problem. There must be compensation for copying.

[Maureen Parker, Executive Director, Writers Guild of Canada]

Good morning, members of the committee. My name is Maureen Parker. I'm the executive director of the Writers Guild of Canada. Also with me today is my president, Jill Golick, a digital creator. Thank you for inviting us.

The Writers Guild is a national association representing more than 2,000 professional screenwriters working in English language film, television, radio, and digital production. Screenwriters in Canada have a vested interest in copyright. Unlike their American counterparts, Canadian screenwriters retain copyright in their work and only license the right to produce. Their ability to make a living from their work is based on upfront fees, participation in profits, and secondary use royalties generated by copyright in other jurisdictions.

We agree that Canada's copyright law needs modernizing and we have been consistent advocates for copyright reform over the years.

Digital technologies have made it easy for people to copy and share creators' works. It's not just about music any more. The average consumer's iPod, computer, and tablet are loaded with film and television programming. Audiences download shows to watch and store for repeat viewing, and screenwriters want that. They want their work to be seen by the widest possible audience, but it's important to remember that copies have value, and screenwriters must be paid that value.

Our biggest concern with Bill C-32 is the introduction of proposed section 29.22, which expands the concept of private copying to all works, but without remuneration. Proposed section 29.22 expands private copying from personal use of the person making the copy to private purposes, which allows an individual to make copies to share with an unspecified number of people. This clearly undermines existing sales of copyrighted works. Why would your friends and family buy a movie or a TV boxed set when you can copy the version you bought and share it with them? Proposed section 29.22 deals a potentially crushing blow to the DVD market. Creators need a modern copyright act that protects, rather than undermines, their revenue streams.

Our preference is the deletion of proposed section 29.22. This would allow markets for the copies to develop. Alternatively, the legislation should limit proposed section 29.22 to music only, so that it balances and works in tandem with the current private copying regime, which is related to music only. This would also require a return to the concept of personal use, the language existing in the current act. Amending the bill in either of these directions would allow collective licensing for private copying of non-music works to develop outside the Copyright Act or in future amendments. We will not be able to do either if these rights are given away for free now.

[Lisa Fitzgibbons, Executive Director, Documentary Organization of Canada]

Mr. Chairman and members of the committee, thank you very much for the opportunity of presenting our views today. My name is Lisa Fitzgibbons. I am the Executive Director of the Documentary Organization of Canada, or DOC, and with me is my colleague Cameron McMaster.

DOC speaks on behalf of 800 members, who are directors, producers and craftspeople in the documentary community across Canada.

Documentarians create works that receive protection from copyright, but as creators they also frequently need to access and use the works of others. Documentarians routinely use clips, archives, photos, etc. to create their works and tell stories of historical or social significance. Under certain conditions, a documentary filmmaker may claim legal fair dealing in order to access and quote copyrighted material without a requirement for permission or licence payment. Filmmakers do so with great care, because as users and owners of copyrighted material themselves they understand that fair dealing is a two-way street: the works they produce may also be used in a similar fashion by others.

Many stakeholders argue that fair dealing can be abused by copyright users to avoid paying for use of materials. DOC does not condone this practice. Fair dealing is not free dealing. In documentary production, the defence should be applied in legitimate circumstances for the purposes of comment, criticism, and review.

The intersection of fair dealing and documentary production has been at the heart of DOC's advocacy efforts for many years, and this is why we are particularly concerned about the bill's provisions on digital locks. DOC supports digital locks as a form of protecting one's expression from infringement, but the current digital lock provisions proposed in Bill C-32 do not provide exceptions for anti-circumvention measures for the purposes of fair dealing.

Visual materials are the raw matter with which documentary filmmakers work. Having access to various sources, analog and digital, is essential to the craft of the documentary. As technology advances, we encode our history on different media. History is being digitized. The ubiquity of digital media may lead to more digital locks, but how can we have free access to this history if it is unavailable because of a digital lock? Consider the impact this would have on our ability, as Canadians, to tell our own stories.

The introduction of digital locks without the proper exceptions for fair dealing, especially for the purpose of documentary filmmaking, would hinder documentary filmmakers' ability to carry out their trade. If documentary filmmakers are kept from practising their craft because of digital locks, they are being denied their freedom of speech and creative expression. Fair dealing is legal. Criminalizing either the tools or the creation and sale of tools to exercise fair dealing is an inherent contradiction in copyright law.

In other jurisdictions, digital locks have been deemed to hamper creative expression and free speech. Consider that in July 2010, the U.S. Copyright Office reformed the DMCA to allow for documentary filmmakers to break digital locks if the purpose and use is fair. As the Government of Canada updates its copyright legislation, it should start on the right foot by creating exceptions for non-infringing purposes in a meaningful and effective manner.

Now we have just a few words about the educational market. Today we'd like to bring the perspective of the educational video community in regard to Bill C-32—distributors, content producers, and producers who self-distribute their work. Documentarians license their materials to many markets, including theatrical, television, digital, and educational ones. The niche subject matter of documentaries makes them perfect material to be used in the classroom. With documentaries, professors and teachers have an affordable and accessible way of enhancing their teaching.

Students have access to Canadian stories and Canadian history. Up until now, Canadian students, educational institutions, educational video distributors, and documentary producers have enjoyed a fruitful relationship. Documentarians want to challenge, criticize, and, most importantly, educate Canadians about the most topical and pertinent issues of the day. Without proper compensation for the use of their works in the classroom, documentarians will be unable to create content for use in this setting.

Furthermore, the distributors that facilitate access to these materials will disappear. If the distributors disappear, where will the educational institutions turn to find high-quality topical educational video for use in their curricula? Will they have to turn to a larger resource, namely American distributors? If that were to be the case, the result would be little or no Canadian video content in the classrooms.

We fear that the combined effect of the proposed reforms to the educational institutions and the fair dealing sections of Bill C-32 will result in less Canadian video content being available in Canadian classrooms.

Thank you.

[François Côté, President, Association des réalisateurs et réalisatrices du Québec]

Mr. Chair, members of Parliament, allow me to begin by pointing out that Denis Villeneuve, whose name has been frequently mentioned this morning, the director of the film Incendies, who was recently nominated for an Oscar, is an active member of our association, as are Denys Arcand, Xavier Dolan and many others.

So you will no doubt understand our pressing need to defend directors' copyright. You no doubt also understand why we have joined creators across Canada in signing statements denouncing several aspects of Bill C-32.

We are concerned about the impact Bill C-32 would have on the creation of films and audiovisual content in Canada. The combined effect of many exemptions for royalty payments, unclear criteria and the wholly inadequate means proposed to protect content will be to devalue the work of Canadian creators, including directors, across the production line. We've heard that this morning.

We can hardly be surprised if creators eventually seek alternative ways, or countries, to make a living. In attempting to expand free access to cultural content, this bill in fact threatens consumer access to Canadian works that reflect our identity and culture, quite simply because such works may no longer exist. The figures cited to this committee this morning illustrate that point.

It is tempting to draw a parallel between what could happen if this bill were passed and what happened to our American neighbours during the subprime mortgage crisis, which resulted in a global financial meltdown that continues to affect us today.

Content is to the audiovisual and communications industry what loans are to banks. It's our core business. When mortgage loans lost their value, the entire banking system was in trouble. If we devalue Canadian content, the entire Canadian audiovisual and communications industry will be under threat.

But the comparison ends there, since, while loans are a basic, essential and irreplaceable part of the world banking system, Canadian content is just one product among others, one that broadcasters, access providers and content integrators, particularly if they're not Canadian, can easily forego. There is no shortage of international content these parties can offer in return for subscription fees which they can pocket in full.

After spending billions of tax dollars to support Canadian culture and create a homegrown audiovisual industry, it would be sadly ironic if the federal government were to destroy it all by allowing creators to go hungry. We can only imagine what the rest of the world would think.

To return to Denis Villeneuve for a moment, let me ask you this: how can we be so proud of his remarkable achievement and yet, at the same time, be willing to undermine the ability of Canadian creators to continue producing such works?

The Standing Committee on Canadian Heritage adopted a motion extending congratulations to Denis Villeneuve for the Oscar nomination of Incendies. But did you know that Denis Villeneuve, like Denys Arcand and Xavier Dolan, is not recognized by the Canadian Copyright Act as the author of his film? Even though he's been nominated for an Oscar in the Best Foreign Language Film category. The entire world recognizes Denis Villeneuve as the author of Incendies, but the law of his own country doesn't. That's why we feel it's entirely legitimate, logical and urgent that the Copyright Act be reworded to include and name the director as the author of the audiovisual work, just like the screenwriter.

The Association des réalisateurs et réalisatrices du Québec would like to cooperate fully in updating the Copyright Act, and will do so in the firm belief that individuals create content and that those individuals should reap the economic rewards of their work.

Thank you for your time and attention.

[The Chair, Conservative, Gord Brown]

I'm going to call this 14th meeting of the special Legislative Committee on Bill C-32 back to order.

Mr. McTeague has a point of order.

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

Thank you very much.

One of you said you were 100% in favour of Bill C-32. However, you're asking us to make what seem to me to be significant amendments respecting the responsibility of Internet service providers, but also regarding their accountability. You want to make them accountable for what happens on their Internet sites. You're also talking about the system that enables an offender to receive notice after notice without expecting any further significant consequences and where a rights holder whose rights are violated sends a notice to the Internet service provider, which in turn sends it to the person responsible for the site or to someone who it is believed has violated the act. That's what's called the notice and notice system. There's also the graduated response system, which we've seen in France, England and Australia.

In short, you're telling us that you entirely support Bill C-32, but that we have to make two major amendments. These are not minor amendments. If we don't make them, do you believe that Bill C-32 can achieve its purpose of combating piracy?

[Patrick Roy]

I believe you have to make a clear ruling on this and to know what is acceptable and what isn't. That's not currently the case. However, this also requires subsequent measures so that citizens understand the consequences of their actions if they choose to opt for what is unacceptable, what is illegal.

As we said at the outset, we support the goal pursued by Bill C-32, but this requires changes so that everything is very clear for the public and so that we get decisive results. This has to result in an effective new act that will quickly change matters in Canada.

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

I've only got maybe three minutes left and I've got a couple more questions, not just for yourself but for the others if we can get to them.

Are you satisfied with the statutory damages provision of Bill C-32 specifically? Let me be clear on this: to some, like myself, there are two problems. The statutory damages do not apply, obviously, to actions of the enablers, but the second problem--and I've raised this with other witnesses who have come before us--is that there's a maximum liability of $5,000 for all infringements deemed to be non-commercial.

Is it your view in your work that a number of commercial-scale pirates are motivated by things other than commercial gain? I'm concerned more specifically about the issue of notoriety and whether or not reputation also factors into this as well. I'm wondering if the statutory damages we have provided here are not only silent on this but on the extent to which that kind of behaviour may have unintended consequences. If it's not perceived by this committee, it's clear that it wasn't perceived by the drafters of the bill. That's not a slight on them, just a recognition of something that's far greater than anything we've anticipated.

Ms. Noss, you or Mr. East might comment.

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

Not for long, though.

Chair, thank you, and welcome to our members here today.

I would also like to thank the witnesses. Their remarks are very interesting

and I am very interested in pursuing them.

Mr. Reckziegel, the last comment you made was with respect to BitTorrents. I want to get right into this, because it seems this is an area in which the committee is going to have to drill a lot deeper. I know there are a lot of discussions out there, but perhaps I'd go to Ms. Noss first.

The Pirate Bay, which is the world's largest peer-to-peer file sharing torrent, had 2.5 million--if my resources are correct here--registered users in 2008. It's also made an incredible $4 million just from advertising its site alone. They lost an appeal, as some of you know, on conviction in Sweden. The court described it as follows, and I'm quoting here: “The Pirate Bay has facilitated illegal file sharing in a way that results in criminal liability for those who run the service.”

This service, as you know, is not just exclusive to Sweden or other countries. It's also here in Canada. I believe isoHunt in particular, which operates out of British Columbia, is the third most popular infringing BitTorrent site in the world. It continues to operate with more than 40 million peers and over 6.7 million active torrents. These figures are from their own website just a couple of weeks ago, on January 31, 2011. I just want to be absolutely clear that I'm not picking these numbers out of the sky.

Ms. Noss, in your opinion, how would Bill C-32 be able to prevent, stop, and arrest sites like isoHunt from facilitating the mass distribution of unauthorized copies of works, if at all?

[David Reckziegel, Member, Canadian Association of Film Distributors and Exporters; Co-President, Entertainment One Films]

I think I'll just focus, then, on the key parts of what I was going to talk about, which is reiterating somewhat what Patrick has said already. This year we've distributed films like Barney's Version and Incendies, which are two of the most acclaimed films of this year, and if we don't do something about Bill C-32, those kinds of films will have more and more difficulty in being made. Those films are being affected directly already.

We've also suffered from this plague of piracy and we need some clear rules and a deterrent in order to prevent this from happening.

Last summer a young filmmaker whose new film we are distributing received congratulations from an acquaintance who had just seen her film. This surprised the filmmaker, since her film wasn't scheduled for commercial release for another month. What she discovered was that her film was already available online and that dozens of other people she knew had seen it as well. This is one anecdotal piece of information, but this happens regularly.

Online piracy is out of control and is damaging the Canadian film industry today. Currently, four of the top ten most pirated films on BitTorrent are distributed in Canada by Canadian distributors.

[Patrick Roy, Member, President and Chief Executive Officer of Alliance Vivafilm, Canadian Association of Film Distributors and Exporters]

Mr. Chairman, committee members, Alliance Films is a leading distributor of feature films in Canada. Our company also distributes films in the United Kingdom and Spain. Alliance Films distributes feature films to entertainment theatres, on DVD, online and to television broadcasters.

There may be the belief in some circles that film piracy only affects American studios. However, nothing could be further from the truth. Although I do not have a lawyer's skills to analyze Bill C-32, I am sitting in the front row where I can see the growing impact of piracy on our industry. I'm here today to express the wish that Canada become a leader in the fight against piracy.

According to the Ipsos/Oxford Economics study released today, piracy's impact on the film industry, including cinema owners, distributors, producers and retailers, is an estimated $895 million in sales losses. Government tax losses alone are estimated at $294 million. Online piracy, the most prolific method of piracy, has eaten into the revenues of all the films that Alliance has distributed over the past several years, including such noted Canadian films as De père en flic, Les amours imaginaires, Polytechnique and Bon Cop, Bad Cop.

Like independent films from around the world, Canadian films are financed from a variety of sources. One of the critical components in a film's financing are presales to film distributors. The amount the distributor will put up as an advance for an individual film is determined by expected revenue. This makes it more difficult for the producer to get the film made.

New digital distribution models are emerging and being embraced by consumers both in Canada and around the world. Netflix, Apple iTunes and Cineplex's recently launched digital service are examples.

Like most industry executives, I believe that digital distribution of feature films will replace DVDs in the next few years. Other innovative digital distribution models will provide consumers with a much greater range of choice than currently exists.

However, if piracy continues to flourish, these endeavours will be undermined. This will mean fewer films will get made, a weakening of Canada's production and distribution companies and significant reduction in jobs for the creative and support industries that make these films happen.

Thank you.

[Ted East, President, Canadian Association of Film Distributors and Exporters]

Mr. Chairman and members of the committee, thank you for inviting us to meet with you today.

My name is Ted East. I am president of the Canadian Association of Film Distributors and Exporters, or CAFDE for short.

CAFDE is a non-profit trade association that represents the interests of Canadian-owned and Canadian-controlled feature film distributors and exporters. CAFDE members distribute over 90% of the non-studio and Canadian films released theatrically in Canada each year. CAFDE members distribute films in Canada from all over the world and in the widest ranges of genres and budgets.

With me are two senior executives from CAFDE member companies: Patrick Roy, president and CEO of Alliance Vivafilm, and David Reckziegel, co-president of Entertainment One Films.

Copyright reform is long overdue in this country. The Ipsos study released today emphasizes how urgently Canada needs to modernize its copyright law to stop massive online piracy and encourage the development and delivery of a variety of innovative new business models. Piracy hurts Canadian film distributors because it seriously erodes both the domestic and international markets for Canadian movies, makes it more difficult to finance new productions, jeopardizes the jobs of everyone involved in the creative process, and ultimately affects consumers as lost investment means fewer movies being made for audiences around the world.

We applaud the government's introduction of Bill C-32 and fully support its stated goals and intentions. However, we do not believe the bill as currently drafted achieves those goals.

Changes need to be made in the following areas: the enabling provision must be redrafted to ensure that anyone who enables copyright infringement, including hosting services, is stopped; the current ISP safe harbour provisions are too broad and could actually legalize the operations of illicit Internet sites; the UGC--user-generated content--exception is so vague that it legitimizes copyright infringements and violates Canada's international treaty obligations; and the statutory damages provisions should apply to enablers and should provide an effective deterrent to large-scale illegal file sharing.

CAFDE also opposes the educational exemptions mentioned in clause 29 and asks that changes be made to protect the legitimate business rights of producers and distributors within the Canadian educational sector.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, today in the special legislative committee dedicated to Bill C-32, we heard from groups representing students from colleges and universities. We also heard from the Canadian Museums Association.

The message we heard very clearly was that Bill C-32 was indeed balanced. We also heard that the Bill C-32 opened up opportunities for the future for Canada's economy, for our students, for our places of higher learning and for industry.

My question for opposition members is very simple. Why are they obstructing and delaying Bill C-32 at committee? Why are we not getting the additional meetings we need for the consideration of the bill so we can return it to the House and open up opportunities for Canada? Why are they holding up protections for creators? Why are they holding back Canada's digital economy?

[Ernie Ingles]

Absolutely we do have opinions on other parts of the bill. I can deal with those summarily, if you wish.

The reason we focused on the education is because that is where we think the nuts and bolts are of what we think is good about this particular iteration of Bill C-32. So that's the part we want you to remember and to continue.

But there are other things that are important. For example, the question of the digital locks; this isn't necessarily our issue. In reality, quite often, to do the kind of work that my members do, we negotiate licences that permit us to do certain things with regard to some of that information.

We are concerned...and I was delighted to hear the comment from the student group about the preservation issue. As I indicated in our submission, preservation is very important to what we do and who we are, and we wouldn't want the lock to get in the way of some of those kinds of activities.

[David Molenhuis, National Chairperson, Canadian Federation of Students]

Thank you very much, Mr. Chair and members of the committee.

My name is David Molenhuis. I am here today on behalf of the Canadian Federation of Students, Canada's largest national students organization. I am accompanied by my colleague Noah Stewart, who will answer any questions that members of the committee may have. Our more than 600,000 members are students at universities and colleges, both undergraduate and graduate.

Students are users and creators. We need both ready access to the works of others and the ability to protect our work from unfair use and appropriation. I would like to begin by addressing Bill C-32's proposal to add education to the enumerated categories of fair dealing. While this falls short of the flexible definition of fair dealing that students have called for, it is a reasonable step forward. Listing education explicitly will only be a modest change to the act, which already allows fair dealing for the purposes of research, private study, and criticism—categories that include the vast majority of educational uses—so long as the use is, of course, fair.

Fair dealing involves a two-part test. While Bill C-32 proposes adding education to the list of permissible dealings, it does not propose to alter the second part of the test, which is the fairness analysis. It will not permit the wholesale copying of textbooks, as some have falsely claimed, nor will it permit teachers to replace the use of textbooks and novels with photocopied excerpts.

In Bill C-32, fairness remains the cornerstone of the law. If a dealing isn't fair, it infringes on copyright no matter how educational it might be. What the proposed expansion will do is promote innovative uses of copyrighted works--for example, a teacher showing a clip from a film to their class, or a student distributing a magazine clipping to accompany a presentation, or even a homework assignment in which students build a website dedicated, for example, to the work of a modern Canadian artist.

Post-secondary institutions have often proven reluctant to rely on fair dealing out of fear of litigious rights holders. The inclusion of education will reassure students, teachers, and other members of the educational community that their uses can qualify as fair dealing, provided they are in fact fair.

While some individuals have claimed that educational fair dealing is unclear and will lead to excessive litigation, this is far from true. The proposed expansion will bring greater clarity to the act, filling in the grey zone between research and private study. Moreover, the bounds of fair dealing have been well established by successive decisions of the Supreme Court, the Federal Court of Appeal, and the Copyright Board. The education community is a major contributor to Canada's creative industry. College and university students spend over $1.3 billion on education materials each year. Moreover, this is one area in which spending on copyrighted works is actually increasing, having grown more than 35% in the last decade.

Expanding fair dealing will not diminish these expenditures. Rather, it will encourage students and teachers to make even greater use of copyrighted works, extending the reach of authors and creators and further supporting Canada's creative sector.

The broad language currently used in the bill supports fair dealing as a right for all, not a special exception for a privileged minority. It ensures that educational fair dealing is available to everyone from a church group, for example, to a music teacher, or even to a university student. Educational fair dealing embodies the very best of Canadian values. It recognizes that a commitment to supporting creators can and must be fairly balanced against a commitment to education.

Although by and large Bill C-32 reflects the balance sought by Canadians, one glaring omission is in the approach taken on digital locks. These provisions would stop, for example, a student from using a graph or picture from an e-textbook in their essay; a teacher from using a clip from a video in a class presentation; and a musician from using pieces of recorded music to create an entirely new song. This approach is especially of concern for members of the education community who are increasingly turning to the use of electronic course packs, e-textbooks, electronic reserves, and other digital materials.

Although the bill includes explicit protections for digital locks, it fails to provide any mechanisms to assist users who wish to access locked materials for lawful purposes. Criminalizing the legal use of these materials strips away any and all user rights and gives copyright owners absolute control over how their works are used. The proposal should be amended to modify the definition of circumvention to apply only to infringing uses. This would address many of these problems.

One last area of concern is the special exception for delivery of lessons by telecommunication found in proposed section 30.01. This section is unnecessarily complex and will hamper digital learning. The requirement that lessons be destroyed after the end of a course will force already overworked teachers to rebuild their courses from scratch each term, and students to delete their learning materials at the end of each semester.

Providing for the digital delivery of course materials could be better achieved by simply modifying the definition of “premises” of an educational institution to include any place from which persons are authorized by the institution--that is, including staff, teachers, and students--to access it.

That said, I'll thank the chair and welcome any questions that committee members might have.

[Jon Tupper, President, Canadian Museums Association]

Thank you, Mr. Chair.

My name is Jon Tupper. I'm the president of the board of the Canadian Museums Association. My day job is as director of the Art Gallery of Greater Victoria in British Columbia. I'm here with our executive director, John McAvity.

Established in 1947, the Canadian Museums Association is the national organization to advance and serve the museums of Canada. There are over 2,700 non-profit museums, ranging from large art galleries in metropolitan centres to volunteer-run heritage museums in small communities in every riding of the country.

Museums are interesting cases for you to consider, as they are both users of copyright materials and also owners of copyrighted materials. This forces us to see the balance that is at the heart of copyright legislation between fair public policy and private rights.

We are here today to speak largely in favour of Bill C-32, with several recommendations for improvement and future consideration. We are pleased with most provisions, including the bill's recognition of education as a legitimate fair public benefit.

Today Canadians are attending museums in record numbers. They are interested in heritage and arts and they want to see more of it, not just on our walls but also on their home screens.

However, these are our services in the public interest, and there is little to no significant revenue generated from these due to the failure of the Canadian art marketplace. And yet we face infringements for making works available for non-commercial purposes, even if we own the works themselves. Museums must pay fees to artists to put a work on exhibition even if the museum owns the painting, and this is not right. We cannot copy or place works of art on our websites without payments; we cannot copy documents or photocopy for others to use, without infringing copyright; we cannot offer public lectures with slides of art without paying a fee; nor can we publish a money-losing catalogue without also paying other fees.

There are other issues that we'd like to address here today. One is the artist's resale right. It has been requested by some organizations that you add this new right, which is, we feel, out of the scope of this present bill. We do not support this, as it is premature and requires considerable study. It will have an impact on museums and a much greater one on the art marketplace. Our principal concern is that this proposal will only benefit a very small number of successful artists, and not those who really need greater support.

Expansion of the exhibition right, which was introduced in 1988 amid much controversy and even rejection by the Senate of Canada, today remains an unsuccessful right in Canada's copyright bill. In fact, no other nation has such a right. Last week it was proposed by a witness that the public exhibition right be expanded by making it retroactive. This would not be a wise move, in our opinion.

Despite our having had this provision for more than 20 years, no other nation has followed our lead. It is costly, cumbersome, and has failed to deliver any significant revenue to artists. We recommend that the exhibition right be reconsidered and reviewed in the next round of amendments, with a view to abolishing it and having it replaced with a compensation program similar to the public lending right.

With respect to digital locks, we join our colleagues, the Canadian Council of Archives among others, in concern over digital locks as a grave issue over the ability of our collecting institutions to acquire, access, and preserve materials with such devices. We believe that the circumvention of TPMs for the purpose of preservation in public collections should take precedence over private ownership rights.

With respect to educational exceptions and fair dealing, in a word, keep them as drafted. Bill C-32's proposal to expand the allowable use for fair dealing to include education, parody, and satire is a reasonable step that will slightly increase access to works. This will not lead to wholesale exploitation of works; it will only apply within the concept of what is fair dealing when balanced against the needs of the owners.

Finally, the issue of what we call orphan works is not dealt with by these amendments, and frankly, it should be. Orphan works are those whose copyright owners cannot be located, which produces a difficulty in obtaining rights and licences for their use and is a frequent problem. A mechanism is urgently required.

With respect to clause 46, we are pleased with the provisions of proposed section 38.1 over statutory penalties for non-commercial infringement. This represents a reasonable approach, which we support.

Thank you, Mr. Chair. We'd be pleased to answer any questions from you and your colleagues.

[Ernie Ingles, President, Vice-Provost and Chief Librarian, University of Alberta, Canadian Association of Research Libraries]

Thank you very much, Mr. Chair.

Ladies and gentlemen, I want to thank you for taking the time to hear from CARL today.

I'm here as the president of the Canadian Association of Research Libraries, although I'm also a librarian and the vice-provost at the University of Alberta, with oversight for libraries, but also for some cognate units, including the university press and the bookstore.

CARL is the leadership organization for the Canadian research library community. Our members include the 29 major academic research libraries across Canada. They support research and innovation by facilitating access to scholarly information. They provide library services to support teaching, research, and learning at Canada's largest universities.

We at CARL were pleased to see Bill C-32. Updating of the Copyright Act is long overdue, and we are happy to see some helpful provisions that would permit our libraries to respond to the changing needs of their patrons.

Librarians at academic institutions are constantly encountering copyright issues. On our campuses we assist both users and creators. We facilitate access while respecting rights. This is what we do. This is what we will always do. With this in mind, I will focus my remarks today on why education is appropriately included as a fair dealing purpose.

Many technological changes in the library and in the classroom over the past 15 years have had a significant impact on the ways in which librarians acquire and make available content for research and instruction. For our universities and their graduates to be competitive in the international information economy, it is crucial that students, instructors, and librarians take full advantage of emerging technologies.

It is time to recognize, as other countries already have, that the contemporary university environment does not easily separate its activities according to the current fair dealing categories. In today's classrooms and libraries, research, personal study, review, criticism, and instruction are intertwined. The boundaries of these activities often overlap. The inclusion of education among other fair dealing purposes allows for new and innovative teaching methods while encouraging student creativity through broader use of information in all formats.

Some have claimed that the inclusion of education as a fair dealing purpose will lead to wholesale copying of entire works. This assertion ignores the fact that libraries and universities respect copyright under the present set of fair dealing purposes, and it wrongly assumes that an additional fair dealing purpose will automatically lead to abuses.

We recognize that fair dealing has to be fair. The mass copying that certain groups have talked about is never fair dealing under the current act and will not become so under an amended act. The inclusion of education as a fair dealing purpose will not change what is acceptable as fair dealing. All fair dealing copying remains firmly subject to the fairness test established by the Supreme Court. Libraries have been circumspect, even cautious, when exercising their fair dealing rights, and this is highly unlikely to change.

Currently, Canadian university libraries spend more than $300 million annually on the purchase or licensing of content. This will not change either with the addition of a new fair dealing purpose.

This is not a question of saving money. We won't be spending any less. Indeed, I think we'll be spending much more. This is a question of addressing the realities of the modern classroom and the modern library in support.

Finally, I would like to remind the committee that Bill C-32 is a package of provisions that aim to balance the needs of users and creators. The removal of education as a fair dealing purpose would destroy any balance in this bill—that is, in our judgment.

There are many provisions that address the needs of copyright holders. We must remember that Canadians from all regions expressed a desire to broaden fair dealing, and the inclusion of education among current fair dealing purposes addresses this.

I have one final note. A very important part of the role of the research library is to preserve our great works and our great collections and ensure the safety of these cultural products by organizing, cataloguing, and archiving what is created. This is in pursuit of preserving this human record in perpetuity for Canadians not only five years from now but also, believe it or not, 500 years from now. That is part of what we do.

Our community is concerned that any restrictive changes to the bill--they're not proposed at the moment--may compromise our capacity to preserve information in perpetuity. We ask that the committee take this into consideration when it is proposing amendments.

I'd like to thank the committee for its hard work and for taking the time to listen to us today.

I'd be pleased to answer any of your questions.

[The Chair, Conservative, Gord Brown]

I will call this 13th meeting of the special Legislative Committee on Bill C-32 to order for the second hour.

We have with us today, as witnesses, Ernie Ingles and Brent Roe from the Canadian Association of Research Libraries; Jon Tupper and John McAvity from the Canadian Museums Association; and David Molenhuis from the Canadian Federation of Students.

The Canadian Association of Research Libraries has the floor for five minutes.

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you, Mr. Chairman.

Good morning and welcome to the committee, gentlemen.

For a while now, you have been saying that, to all intents and purposes, there will be no losses for creators. However, the people who came to see us not long ago assessed the losses at approximately $74 million. Now they assess the royalties of all kinds that could be lost if the bill were passed at $126 million.

You seem to be saying that, no, there will be no losses. In education, for example, we're talking about $40 million for Canada and $10 million for Quebec. Let's consider photocopies, for example. If there aren't any losses under Bill C-32, could there at least be slowdowns in royalty payments? What's happening at the present time? What will Bill C-32 change in this sector, among others?

[Paul Jones]

Are you saying that I'm saying we should put this in Bill C-32?

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

Thank you.

Is it fair to say that Bill C-32 does not alter access copyright fees or any other licensing fees that the university community currently pays?

[Steve Wills]

We were given the figure of over $300 million by the Canadian Association of Research Libraries. It involves spending by libraries in universities across Canada. Of that $300 million, my understanding is that $160 million, approximately, is for licensing digital resources--for example, the digital versions of academic journals.

There are various.... For example, there's the Canadian Research Knowledge Network, which was set up by a consortium of, I believe, about 68 universities. That body negotiates licensing agreements directly with academic publishers for use by the universities in that consortium of digital versions of those journals. Similarly, the regional university library consortia across the country, such as the Ontario Council of University Libraries, together with their counterparts in the west, the east, and in Quebec, all negotiate similar licensing arrangements.

So a significant portion of what's happening is that universities have transitioned towards the use of digital resources and away from photocopying. For that reason, when people talk about the threat to the licensing revenues, for example, of Access Copyright or Copibec, the threat does not come from Bill C-32. The threat comes because in the digital environment those who are offering licences for the digital works are often bypassing these collectives and dealing directly with institutions to negotiate new agreements.

As I said, of the $300 million, about $160 million is licensing of that kind. I don't have a breakdown on the rest of this money.

[Paul Jones]

I'll try to be quick in my answer.

The United States has a robust publishing industry. It has an incredible content or entertainment industry, probably the strongest in the world. It has educational fair dealing. The U.S. copyright law says that you may fair deal for purposes “such as”; it lists some, but you can do other things. It's broadly accepted there that education falls within that. It's set out in certain guidelines, including the right to make multiple mechanical copies of a work for classroom use.

There's no indication that Bill C-32 is heading even remotely in that direction, but that's the standard in the United States. They allow that; they still have authors; they still have writers; they still have all kinds of cultural activities going on. To suggest that Canada moving even modestly in that direction is somehow going to cause the sky to fall is just ludicrous.

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

Thank you very much, Mr. Chair.

Thank you to all our witnesses for appearing today. It's been quite informative. It is indeed refreshing to hear that in fact the sky isn't falling, and that there's urgency to studying and passing Bill C-32.

Mr. Turk, I wanted to start with a question for you, please. In your presentation you made the statement that fair dealing under Bill C-32 does not exceed the U.S. notion of fair use. Could you please elaborate on that?

[Paul Jones]

Yes, I can quickly speak to that.

The TPM or digital lock provisions in Bill C-32 stand out strangely as really containing no balance whatsoever. What it will mean is essentially the end of fair dealing, the end of a fundamental right enshrined in the Copyright Act, in any kind of digital environment.

What's unfortunate about the overbroad application of the TPM rule is that there's a really elegant solution available, and we saw it in Bill C-60, which says if you're going to break a lock in order to pirate a material, in order to steal from an artist, you can't do that. That's something we're four-square behind.

What we are saying, though, is that there are reasons you might want to break a lock for lawful purposes. It could be fair dealing. It could be archival reproduction of material. It could be to help visually impaired people access a work. You can make a simple amendment to the act that says, look, you can't break locks for infringement purposes, but if it's non-infringing, then it's permissible.

[Steve Wills, Manager, Government Relations and Legal Affairs, Association of Universities and Colleges of Canada]

Madame Lavallée, I'd like to respond to a few of the points you raised.

First of all, in regard to the educational community, nothing in Bill C-32, for starters, is going to change the revenue going to the collectives such as Access Copyright and Copibec. It's not about saving money. What it is about--the change to fair dealing in particular--is allowing certain educational opportunities that right now sometimes don't occur.

Take the process of getting a clearance. Say, for example, a student is putting a portion of a work into a multimedia project. It's not reasonable to expect that the student will go through the process of identifying who the copyright owner is, waiting for a clearance that may or may not come, and then paying a fee to do that.

I can give you another example that was told to me by an individual who works with clearance at a university. One professor wanted to use short excerpts of two television programs to show his class, and he was quoted fees of $8 a second and $66 a second. Now, the net result of this kind of thing is that the works aren't used. There are many, many examples I could cite like that, where educational opportunities have been foregone because the cost of getting further clearances would be quite excessive.

In respect of your suggestion that institutions are paying $3.38 per student, that is only an interim cost, and that does not include the 10¢ per page that will be paid for course packs. The request from Access Copyright is $45 a student. It's not clear where the ultimate fee will come out.

Lastly, just very quickly, in terms of going to foreign sources, one of the reasons universities have gone to the Copyright Clearance Center is that Access Copyright is refusing to process transactional permissions for digital works, something it has done in the past readily, because it's trying to push institutions into using its new tariff. As a result, institutions that do not wish to use the tariff have no option but to go to the Copyright Clearance Center in the U.S.

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

Thank you very much.

Gentlemen, I admit I don't understand you. You represent Canadian universities and colleges, you represent university professors, and, in that sense, you should be concerned with Canadian culture, since it is culture that you represent. You should also be concerned about instilling in the students at your universities the principle of compliance with copyright, respect for artists and the value of artistic works. It seems to me that would be a minimum. You've come here to defend the principle of fair dealing. Last week, some eminent lawyers came and told us that fair dealing in Canada and the United States will never be judged in the same way and that it will take 10 to 12 years of uncertainty and no payments to artists to get through the definition that currently appears in Bill C-32.

In Quebec, the National Assembly has come out against Bill C-32 as it is currently drafted and against fair dealing for education. A motion to that effect has been adopted. Quebec's minister of education has written a letter expressly to assert that she did not approve of this exemption for education. The Fédération des commissions scolaires du Québec has also taken a stand, in a letter, in a press release, in a brief that you can see on the Internet, against this new exemption for education that appears in Bill C-32.

You've come here and you're saying that it won't cost us a lot less, but it will cost you a lot less. In any case, we wonder why you're doing this if it's not in order to pay less. If you're preparing all these briefs in order to pay exactly the same price or to pay more, I'm telling you someone's wasting his time here.

The Copyright Board issued an interim tariff last December so that universities could continue using the photocopying licence with Access Copyright. It's true that the universities are not required to use that licence, but it has issued a tariff of $3.38 per student, plus 10¢ a copy, which is exactly the current tariff.

The universities have preferred to contact the rights holders or foreign societies in order to release the rights on their own. This is one of my questions. Isn't it odd that, to avoid using the 10¢ Access Copyright licence, universities prefer to go directly to the Copyright Clearance Centre, the American society, to release rights to certain American publications and then to agree to pay twice as much, 25¢ a copy. I haven't finished.

The system in Quebec works very well. The National Assembly, the Fédération des commissions scolaires, the minister of education and, obviously, the minister of culture, have come out against this exemption. It's working well. Copibec is working well, the artists are happy, things are going well. They've all come here, or they will be coming, to say that things are going well in Quebec.

So, sincerely, I have to tell you that seeing people from Canada file in here to request an exemption so that they don't have to pay artists or pay them less—people who earn about $23,000 a year—reinforces our desire to make Quebec independent. It makes us want to tell you, never mind, work things out however you want, and we'll do the same on our side because we in Quebec respect our artists. We have a cultural and artistic system that works very well. And no one complains about having to respect the value of artists' works. Quebec as a whole has long been demanding full control over artistic and cultural works, in other words over copyright. To see you here today insisting and to see the entire range of representatives from Canada who will be coming here to tell us that they want to pay less in copyright royalties because they want to pay their artists less merely reinforces our idea that we in Quebec would be much better off alone.

[James L. Turk, Executive Director, Canadian Association of University Teachers]

Good morning, Mr. Chair. I'd like to thank you and the committee for the opportunity to appear before you today.

The Canadian Association of University Teachers represents 65,000 academic staff at more than 120 universities and colleges across the country. Our members include both creators and users of copyright material. We have had to deal with both sides of some of the controversies that have come before your committee. While we realize it is unlikely the committee will be able to satisfy the wishes of all Canadians, we are hopeful that our presentation will help the committee find a proper balance in this difficult area.

We'd like to begin by recognizing the efforts of successive governments to modernize Canada's copyright law. In particular we'd like to acknowledge the generally open and meaningful consultation process leading up to Bill C-32. The consultation, in perhaps the strongest way yet, heard and seriously considered the interests and concerns of all Canadians.

With respect to Bill C-32 itself, it contains some elements that disappoint us, and we have several amendments to suggest. Nonetheless, CAUT supports the overall direction of the legislation and recognizes it as a good-faith attempt to create balance in copyright law. In these brief opening remarks, we will address two particular issues: digital locks and educational fair dealing.

On digital locks, CAUT believes the efforts of balance found elsewhere in Bill C-32 are absent. The bill's overbroad lock-breaking prohibition will not deter digital pirates; it will only inhibit honest Canadians from engaging in otherwise lawful activity to a very great detriment of free expression, research, and education. Bill C-60 got it right when it banned breaking locks to violate copyright but permitted the activity for lawful purposes such as fair dealing. That is the balanced way to proceed, and we urge the committee to recommend that.

With respect to educational fair dealing, Bill C-32 will allow Canadians to take advantage of teaching and learning opportunities more fully. For example, fair dealing for the purpose of education would permit Canadians to fairly incorporate excerpts from works into individual presentations, lessons, lectures, and academic articles and fairly distribute copies of material that meets a spontaneous in-class educational need such as a poem or song lyric in remembrance of a special event, or a news clipping on a world crisis.

Importantly, educational fair dealing will comply with our international obligations under the Berne three-step test. We know this because the Supreme Court's test for fair dealing itself addresses the Berne requirements. We also know this because Canadian educational fair dealing does not exceed the U.S. fair use practices, the gold standard for copyright compliance.

Equally important, because we have heard suggestions that it will cause the sky to fall, we want to emphasize that educational fair dealing will not cause entire books to be copied or distributed, will not replace the need to purchase course packs, will not significantly reduce the millions and millions of taxpayers' dollars the education sector currently spends annually on copyright material. In this particular regard, CAUT agrees that if there are any savings associated with educational fair dealing, they should be used for additional library acquisitions and site licences.

As well, fair dealing will not unleash a flood of litigation. There will be no litigation storm because the Supreme Court's CCH decision has defined fair dealings parameters. These familiar parameters will not change if new purposes such as parody, satire, or education are added and there will be no need endlessly to relitigate them.

Finally, on the issue of educational fair dealing, there has been discussion about whether or not it should be narrowly defined. CAUT believes educational fair dealing must not just encompass formal educational institutions as defined by the Copyright Act. The beauty of fair dealing is that it is a right for all Canadians, not a special exemption for a privileged few. It should be available in a wide range of settings, including public libraries, galleries, and museums. It should also be available to a girl scout troop learning about trees, a Sunday school class studying the geography of the Holy Land, a photographer teaching a photography class, a hockey coach explaining skating techniques, a Kiwanis club presenting a speaker on the emerging economic power of China. Learning occurs inside and outside educational institutions and from youth into old age. The Copyright Act must recognize and respect this.

Thank you, Mr. Chair. My colleague Paul Jones and I will be happy to answer any questions the committee may have.

[Paul Davidson, President, Association of Universities and Colleges of Canada]

Thank you very much, Mr. Chairman, and thank you for inviting the Association of Universities and Colleges of Canada to take part in this study by the committee on Bill C-32.

My name is Paul Davidson, President and CEO of the association. Steve Wills, our manager of Legal Affairs, is with me today.

The association represents 95 public and private not-for-profit universities and colleges across Canada.

Let me be very clear: AUCC supports Bill C-32 as a fair and reasonable balance between the rights of copyright owners and users of copyright works. We urge this committee to complete its work and report back to the House. As everyone knows, this is the third effort in recent years to modernize the legislation, and it's important that the work be completed in this session.

Universities really appreciate the need for balance. Universities create intellectual property, universities use intellectual property, and universities sell intellectual property. Within universities you have faculty as researchers and teachers, students as learners, librarians, booksellers, and publishers.

Of all the groups that are appearing before you, and the many more that want to appear before you, I think our organization understands keenly the need for balance in the legislation.

Universities in all regions of the country, both large and small, focusing on research or on undergraduate teaching, strongly recommend that the committee make minor amendments to Bill C-32 and then refer it back to the House of Commons so that it can be voted upon as soon as possible.

We believe the bill could be strengthened by reasonable and fair amendments to certain of its provisions, which are detailed in AUCC's submission. Rather than review the written submission we provided, which is with you today—there is also a one-page summary—I want to take a moment to dispel some of the myths that have been propagated by some of the witnesses who have appeared before this committee.

In particular, it has been suggested that the education community does not want to pay for educational materials and that Bill C-32, especially the addition of education as a new fair dealing purpose, will undermine the publishing industry in Canada and decimate the revenues of copyright collectives such as Access Copyright. Another claim says the education community does not wish to compensate creators who produce educational materials. These claims are false and are not supported by the facts.

Canadian university libraries spend more than $300 million annually to buy and license new content for research and learning. In addition, Campus Stores Canada, which represents post-secondary institution-owned bookstores across Canada, estimates that over $400 million is spent every year in university bookstores to buy new textbooks, course packs, and some works in digital format.

It is clear that universities and university students are paying very large amounts annually to purchase and license educational materials. Their spending provides tremendous support to Canadian creators, and nothing in Bill C-32 will cause this spending to decline.

Some have also claimed that Bill C-32 will undermine publishing in Canada and destroy the revenues of copyright collectives. For example, in its testimony before this committee on December 6, Access Copyright claimed that both it and the Quebec reprography collective Copibec will be at risk of losing $40 million in revenue as a result of the amended scope of fair dealing in the education sector, as well as other education-related exemptions provided for in the bill.

This assertion is groundless. Two years ago the Copyright Board of Canada clearly defined fair dealing as it relates to educational copying. Teachers in K-to-12 schools made copies of required readings for each of their students, and the copying in question amounted to an average of only several pages per month per student. The Copyright Board found that the copying by teachers failed to meet the fairness factors laid out by the Supreme Court of Canada. Had Bill C-32 been passed before this decision, the availability of education as a fair dealing purpose would have had no effect on the outcome, because the ruling was based on fairness tests, not on the purpose of the copying.

In other words, the Copyright Board ruling created a strict precedent that severely limits the fair dealing copying for educational purposes. If copying several pages per month for each student in a class is not fair dealing, then surely it is unreasonable to suggest that the legislation would permit the multiple copying under fair dealing of complete journals and journal articles and chapters from books that accounts for most of the licence revenue received by Access Copyright and Copibec from universities and students. Simply put, the proposed amendments to fair dealing would not undermine the sale of books, especially textbooks, or the revenue base of copyright collectives.

Let's take a brief look at our neighbours to the south, who have a fair use exception that is far broader in scope than what is proposed in this bill. The U.S. fair use exception explicitly permits the making of multiple copies for a work of classroom use. Despite this broad fair use provision, the educational publishing industry in the U.S. continues to thrive. Last July the Association of American Publishers noted that higher-education publishing sales increased 6.3% for the month and 21.4% for the year.

Our submission recommends some modest amendments that do not alter the essential balance that has been struck in Bill C-32, and addresses some of the concerns raised by other stakeholders.

I'd like to thank the committee for the opportunity to present these views before you, and I welcome any questions you might have.

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

Good morning, everyone.

We will call to order this 13th meeting of the special Legislative Committee on Bill C-32.

For the first hour we have witnesses from the Association of Universities and Colleges of Canada, Paul Davidson and Steve Wills. From the Canadian Association of University Teachers, we have James Turk and Paul Jones. From Campus Stores Canada, we have Chris Tabor.

Some of our witnesses are still in the security line, so we will go ahead with those who are here.

Mr. Davidson, you have the floor, five minutes.

[Dr. Michael Geist]

I think you're right. Especially in the copyright area, a change in technology represents a real challenge, but I think there are a couple of ways that you deal with that. One is that there is a continual revisiting of these issues, and Bill C-32, which your government has introduced, contains a requirement that we take a look at the law every five years. I think that's a good approach--recognizing that.

Now, the particular issue around digital locks that we're talking about involves treaties negotiated in the 1990s that attempted to be forward-looking. While we can debate whether they truly were forward-looking, the standards they set are the standards that have been adopted still today—even recently, in many other countries, among some of our other trading partners. I'm not saying we don't need to move forward with those rules; I'm saying that the kind of general outline they provide is one that's designed to stay current. I think we need to retain those flexibilities in the law.

I'd also just quickly note that we shouldn't underestimate the ability of copyright law, in its basic principles, to deal with some of these issues. I'll give you an example. The current bill provides a specific provision to deal with what are called enabler sites, sites that are designed to deal with clear pirate websites. Everybody says, well, of course we need to be able to deal with that.

Last year, three weeks before the bill was introduced, 26 record labels secretly filed a massive lawsuit against the largest known alleged pirate site in Canada, a site called isoHunt. They used existing Canadian copyright law. They're looking for millions of dollars in damages, they're looking for a full shutdown of the site, and they're using the law today.

The lawsuit suggests that all these claims that they are powerless and that we need reforms mistake a little bit where we really stand, because in fact there is the ability to use, in many instances, basic copyright principles that have been in place for decades to deal with some of these issues. It's in a sense old wine in new bottles, but it can still effectively apply.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

Welcome to our witnesses. It's been a good discussion here this morning. However, there were a couple of comments made that I would like to drill into a bit deeper.

Mr. Geist, I don't think any of us, outside of you perhaps, are experts on intellectual property rights, and we're not trying to pretend to be. But certainly the world is changing and technology is changing, and I think we've got a bit of a double-edged sword with technology.

You made a comment, your last comment, actually, that the agreements and negotiations that took place in the 1990s should be maintained. That's better than a decade ago. Technology changes so rapidly that I don't know how we can maintain those agreements.

I'm not saying the European copyright laws don't go too far, so don't get me wrong. I do think we need a made-in-Canada solution, and I think that's what we're trying to do with Bill C-32.

But the difficulty of that—and I do have some faith in our trade negotiators who liaise with industry, and our WTO partners around the world who try to figure out exactly where we're headed in the future—is that with this one, I think the moment you think you have a grasp on it, it's gone.

I want you to comment on the whole concept of changing technology and how we could ever possibly keep up to it.

[Dr. Michael Geist]

Thank you for the question.

Let me deal with each of those, because you have in a sense highlighted two of the most important ones in terms of statutory damages and digital locks.

On statutory damages, I think there's increasing concern among many individual Canadians that cases of non-commercial infringement.... And I want to make clear: when you have someone who is infringing and seeking to profit from that infringement—the person who burns a copy of a DVD a thousand times and tries to sell it on a street corner. Everyone is in agreement that we need tough penalties to deal with cases in which people are profiting from that, and Canadian law already provides them.

What Bill C-32, the current Canadian copyright bill, seeks to do is say that we're going to have tough penalties, but we want to ensure at the same time that individuals, when there is non-commercial infringement—the proverbial teenager who is engaged in something they aren't profiting from and who is dealing with a 99¢ song—shouldn't face the prospect of $20,000 in liability just for that one song.

What Bill C-32 does, what the government has proposed, is to say that we're going to put a cap on non-commercial infringement. I think that's a good idea. I think it follows the approach in a lot of other countries that don't even have statutory damages. But what the Europeans are looking for is to increase the kinds of damages we have.

Canada has put on the table the notion that we should be able to continue having differences in the approaches we take for damages. I think that's the right approach. I think, actually, that the counter-proposal Canada has put on the table is the right one. I flag it because I think it's important to maintain the ability for Canada to make the choices it wants to make.

One area, though, in which the proposal from the Europeans would go beyond what the international treaties require, which has real implications for Bill C-32, is the area of digital locks. These locks are used to lock down such things as DVDs, electronic books, potentially CDs, and others. The concern many people have expressed is that there are legitimate consumer reasons why one might want to take a DVD and play it on one's iPad or iPod or video player, or take an electronic book and be able to exercise one's fair dealing rights; in a sense, that the same rights people have in the offline, non-digital world ought to be replicated in the digital world.

What the Europeans are proposing is rules that extend well beyond what is required at international law to provide legal protection for digital locks.

So my view about where Canada ought to go with respect to CETA is to say that we're going to provide protection for digital locks. We see it in Bill C-32; we saw it in Bill C-61; we saw it in Bill C-60. It's clear that Canada is moving forward to provide some legal protection for digital locks. But we're going to do it in a way that conforms with international law, and we're not necessarily going to go beyond those norms in a way that frustrates consumer expectations and that can have some real, harmful commercial effects as well for those who are purchasing things and ultimately find that their basic consumer rights are lost.

[Dr. Michael Geist]

So there were two global concerns with the anti-counterfeiting trade agreement. First, the secrecy associated with the negotiations led to widespread concern about negotiating an intellectual property agreement outside the conventional international forum of the World Intellectual Property Organization and with a level of secrecy normally accorded to military documents.

Second, the substance of the agreement extended far beyond addressing commercial counterfeiting issues. Instead, there was a concerted effort to renegotiate international intellectual property law by increasing the level of protection beyond required norms.

The final agreement raises some concerns—and I'm talking about ACTA here—though many of the most problematic provisions were ultimately amended under pressure from a coalition of countries that included Canada. I raise ACTA because many of the concerns associated with that treaty are being replicated within the CETA process, yet this time there is no coalition to argue for maintaining international flexibilities.

First, the same secrecy concerns that arose within the context of ACTA arise here. It's true that there have been leaks of various CETA chapters, including the intellectual property chapter, yet commenting on leaked chapters is not a full substitute for full and open consultations that permit expert analysis and opinion on proposed treaty rules. Waiting until we have a final or even near final text isn't good enough. We need public access for the purpose of informed commentary before the final trade-offs and the negotiations are concluded.

Second, and even more so, the substantive copyright provisions within CETA, from what we know, raise some significant concerns. In this regard, I'd like to make five brief points.

First, the inclusion of intellectual property policy marks a dramatic shift for Canadian trade negotiations, which have conventionally addressed market entry, investment, and tariff issues. As Dan Ciuriak, a former deputy chief economist at the Department of International Trade, has noted with respect to the CETA IP provisions, the process is not a sound one. In a hotly contested area, to have fundamental business regulation made in this fashion is not sound.

Second, the inclusion of copyright provisions within CETA is almost completely one-sided. With the exception of an anti-camcording provision that the EU has already rejected within ACTA and is therefore unlikely to accede to here, Canada has made virtually no demands on the copyright front. There is simply no evidence that there is much in this for us. Rather, the copyright provisions are a rather obvious attempt by the Europeans to export rules to Canada that they have been otherwise unable to do via ACTA or other international agreements.

Third, some rights holders have used the CETA process as an opportunity to circumvent domestic copyright reform by promoting reforms within CETA that may later tie our hands for a made-in-Canada approach on copyright. For example, the Canadian Publishers' Council has provided a submission to the government calling for an extension in the term of copyright and the creation of a sui generis approach to database protection, new kinds of protections for databases. Both of these reforms were soundly rejected during the 2009 copyright consultation that the government conducted and are not found in Bill C-32, yet this circumvention of the domestic policy process through international agreements carries significant dangers if we're not careful.

Fourth, the substantive proposals demanded by the EU are designed to rework Canadian copyright law in a manner that extends well beyond international law. Indeed there are instances where Europe's failed international efforts are being recycled within CETA despite the fact that Canada stood opposed in international fora. For example, the World Intellectual Property Organization has been negotiating a proposed broadcasting treaty for over a decade. The proposed treaty has never managed to obtain broad support, with many expressing understandable concern that extending new rights to broadcasters merely for the act of broadcasting represents a significant shift away from traditional notions of copyright that serve the interests of both creators and users. Canada has expressed similar doubts at WIPO, yet CETA seeks to import the failed provisions into Canadian law.

Another critically important example are the digital lock rules found within CETA. As you likely know, the digital lock rules in Bill C-32 have been among the most contentious in the bill. In fact those provisions have always been contentious, dating back to their initial inclusion in the WIPO Internet treaties in 1996. Those treaties established considerable flexibility and implementation in order to obtain consensus among the differing views on the issue.

The same concerns arose within the context of ACTA last year. CETA includes digital lock provisions that extend beyond the requirements in the WIPO Internet treaties, and therefore would remove some flexibility as Canada considers how best to comply with those treaties.

Fifth, there are potential concerns with CETA and the current draft of Bill C-32. For example, Bill C-32 codifies the notice and notice approach that has been used by Internet service providers across Canada for many years when they receive notifications of alleged infringement. The notice and notice approach in Bill C-32 strikes a good balance between the rights of copyright owners and the interests of Internet subscribers. Yet the Europeans have proposed language that would require ISPs to remove or disable access to content simply on being informed of alleged infringement—not proven, simply alleged. This appears to be an attempt to bring in a notice and take-down system that was rejected in Bill C-32; it was rejected in Bill C-61 before it; and it was rejected in Bill C-60, which the Liberals introduced even before that.

Another example involves statutory damages. Bill C-32 rightly distinguishes between commercial infringement, which carries full statutory damages of up to $20,000 per infringement--it gets tough with cases of commercial infringement--and non-commercial infringement, which carries a $5,000 cap on damages. The Europeans have proposed language that may contradict the Bill C-32 approach. Indeed, the Canadian counterproposal on this currently seeks to preserve the ability to make adjustments in special cases.

In sum, the copyright provisions were not part of the Canada-U.S. Free Trade Agreement or NAFTA. They were largely excluded or kept very minor in our more recent trade agreements. CETA represents a very significant change that's part of a broader effort to pressure Canada to change its copyright laws.

While most agree that there is need for some reforms, discarding a made-in-Canada approach for one drafted in Brussels raises significant concerns that implicate both future and current legislative proposals.

Thank you.

[Dr. Michael Geist, Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual]

Thanks. Good morning.

My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair on Internet and e-commerce law. I've been active on copyright and intellectual property issues for many years. Last year, I edited the largest academic study to date on Bill C-32, the current copyright bill, with peer-reviewed contributions from 20 leading Canadian experts.

I appear before this committee today in my personal capacity, representing only my own views.

The committee's recently released report on CETA's fact-finding mission focused primarily on two intellectual property issues--geographical indications and pharmaceutical patents--so the committee is aware of some of the concerns associated with the EU proposals, particularly some of the impact on agricultural products, and even more so on pharmaceutical pricing.

But I'd like to focus on another intellectual property issue within CETA: copyright. I believe that to fully understand the CETA copyright provisions, they should be viewed within the broader context of copyright trade pressures on Canada.

As committee members may be aware, Canada recently participated in the anti-counterfeiting trade agreement negotiations that led to a draft agreement in December of last year. The United States and the European Union were two of the leading protagonists behind the treaty. While few would oppose genuine efforts to deal with dangerous commercial counterfeiting, ACTA generated a global public outcry on at least two grounds.

First, the secrecy associated with the negotiations led to widespread concern about the negotiation of an intellectual property agreement--

[Alexander Crawley]

For our part, I think the graduated response is the thing. We don't want to go after widows and orphans. It's a culture that's not working. That approach is not working. However, as you've heard before at this committee, we need a test of what makes it an original work so that the definition would be clear for everyone who was using it--you know, the USG.

The other thing is that as we understand Bill C-32, Canada would be the only place in the world where a web service such as YouTube wouldn't have to pay anything to the owners or licensees.

[Hélène Messier]

It's based on use. Under our system, teachers have to report the works that are being used so that rights holders can be as fairly compensated as possible. The more often their work is reproduced, the more remuneration they receive.

We issue a cheque for a minimum of $25, but the maximum can be as high as several thousand dollars, depending on how much the work is used. There is an exception for exams, but when a work is used for a mandatory French exam and 70,000 copies are made in Quebec, an author can expect to receive several thousand dollars for the use of his or her work in that context. That will became an exception under Bill C-32.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Let's come back to education now.

If I'm not mistaken, you are asking that the term “education” be deleted from Bill C-32. We agree with you on the fact that this is a step backward that presents a risk for creators, and that it is not balanced in that respect. However, for other reasons, we don't go as far as to suggest removing that term, because education is important. What we want to do is limit the impact on creators as much as possible.

Do you have something in mind?

The solution I have been thinking of is in two parts. First of all, “education” would be defined in as restrictive a fashion as possible, excluding professional training. Second, the test would have to be as rigourous as possible, in order to limit use of this exception.

Do you have any comments on that?

[Hélène Messier]

The Canadian government has ratified a number of treaties, including the WIPO treaties, the Berne Convention and the TRIPS Agreement. All of these treaties include a provision under which exceptions relating to copyright must be limited to special cases which do not conflict with the normal exploitation of the work or the interests of creators.

In that regard, I am not the only one to be of that view. Several experts provided testimony before the legislative committee studying Bill C-32, including Ysolde Gendreau of ILAA Canada, and Georges Azzaria. The Quebec Bar and a number of other international associations have written many letters on this issue. In their opinion, the exceptions proposed by the Canadian government, particularly regarding fair use, contravene Canada's international obligations, because they are far too broad. Furthermore, given that they are already subject to remuneration, they will necessarily conflict with the rights of copyright owners.

[Hélène Messier]

I cannot presume to know what the drafters had in mind. However, what I noted is that wherever there was a definition including the concept of collective administration—for example, visual display of works or for exams—those exceptions only applied when the work was commercially available. The definition of “commercially available” had two parts to it: either the work could be purchased commercially or it would be available through licensing from a collective society. In both cases where that definition appeared, Bill C-32 removed the second part of that definition—in other words, collective administration.

It's obvious that by taking away compensation from authors or copyright owners that was channelled through a collective society, and by jeopardizing the livelihood of creators and copyright owners by forcing them to defend their rights before the courts, there will necessarily be fewer revenues collected by copyright collectives to cover their own administrative costs. As a consequence, they will be deprived of the possibility of distributing revenues to copyright owners.

Now, is that intentional or is it collateral damage? I will let you draw your own conclusions.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, Mr. Chair.

Good morning and welcome to the committee. Thank you for being here.

Ms. Messier, you said that Bill C-32 is an attack on collective administration. This is not a partisan question, although those are strong terms: do you believe that it is a direct and voluntary attack on collective administration, or that it is an indirect effect—collateral damage, as they say?

[Danièle Simpson, President, Union des écrivaines et des écrivains québécois (UNEQ)]

Good morning, and thank you for this opportunity to address you.

The Union des écrivaines et des écrivains québécois is a professional union founded in 1977 which now represents almost 1,400 writers.

The UNEQ is recognized as the association most representative of artists working in the field of literature under the Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters—R.S.Q., c. S-32.01—and consequently speaks on behalf of all Quebec writers.

In the brief we are presenting today, we have chosen to analyze the clauses that concern us one by one, in order to clearly demonstrate the extent to which writers will lose out if the bill is passed in its current form.

The government is seeking to add to the Copyright Act a whole host of exceptions with the apparent goal of balancing the rights of creators and the interest of consumers. However, the vast majority of these exceptions provide neither for remuneration nor the possibility of control by the author of the work, which we automatically consider to be contrary to the spirit of an act that is supposed to protect creators.

Furthermore, the terms used in the often imprecise wording of the bill force copyright owners to look to the courts to define the scope of these exceptions. They will have to do that at their own expense, in order to receive only minimal damages, compared to the cost of such proceedings.

Thus there will not be an appropriate balance struck between creators and users, and only after lengthy legal proceedings will we know what is legitimate and what is not.

We would now like to look at the bill in detail, starting with clause 29, which concerns fair dealing for the purpose related of education, satire or parody.

It should be noted, to begin with, that the lack of any definition of the term “education” will enable any organization that offers training to claim that its purposes are educational and thus avail itself of the fair use provisions. Furthermore, free access to these works will deprive writers of fair remuneration. Because literary works circulate extensively in the educational sector, the latter represents a significant source of income for authors. To consider depriving them of the compensation they deserve when their works are the raw material of education is unacceptable. We are therefore recommending that the term “education” be struck from clause 29.

The addition of clause 29.21 aims to legalize the use of protected content by users who wish to use this content to create a new work which is then disseminated digitally at no profit, but with no due consideration for the fact that such new works may betray the spirit of the works used, something that simply mentioning the source cannot remedy. Such an exception violates an author's moral rights and should be removed.

New clauses 30.01 and 30.04 apply to educational institutions. The first one makes it possible for these institutions to communicate a protected work as part of a lesson using telecommunications. The institution must take measures that can “reasonably be expected” to prevent students from further disseminating the work, but no penalty is imposed should it fail to do so. Furthermore, the fact that educational institutions will not be obligated to pay authors for such use constitutes unprecedented prejudice which no one else involved in education would accept.

The second clause allows institutional institutions to use works available on the Internet for education purposes. At the present time, a work is protected under the Copyright Act as soon as it exists in some material form, whatever that may be. Clause 30.04 removes that protection in an educational setting. Yet collective administration would, in both cases, afford access to these works while compensating authors. We therefore recommend that clauses 30.01 and 30.04 be removed.

Clause 30.02 extends the license to photocopy by treating digital reproduction and print reproduction as one and the same thing, thereby allowing their costs to be assessed on the same basis, without regard for the possible dissemination of the work. We recommend that this clause be re-drafted to make a clear distinction between digital reproduction and print reproduction, with compensation adjusted accordingly.

As regards levies for private copying, the UNEQ believes that a modern Copyright Act should extend levies to new digital formats and provide compensation to all artists. in all areas, including literature.

With respect to those measures aimed at making Internet service providers accountable, the UNEQ believes that the notice and takedown system is the only one that ensure adequate protection of works disseminated over the Internet. The notice-and-notice approach is too weak and forces creators to police the web themselves, a burden that is disproportionate.

In summary, the UNEQ believes that Bill C-32, which purports to modernize the Act, actually greatly increases the number of exceptions, thus depriving writers and artists of fair compensation; denies their right to approve or not the use of their works; remains vague as to the meaning of the terms used in the bill, leaving it up to the courts to interpret them; sets laughable fines, compared to the costs that would be incurred; removes any accountability for Internet service providers; ignores Canadian copyright collective societies' successful negotiations; and endangers the book industry and the development of new markets in the educational sector.

We are therefore asking that Bill C-32 be completely overhauled so as to provide adequate compensation for the use of copyrighted works and to ensure that any exceptions are consistent with the terms of the Berne Convention. We are also asking that collective administration be recognized as the safest way to guarantee respect for the rights of creators and access to their works.

Thank you for your attention.

[Hélène Messier, Executive Director, Société québécoise de gestion collective des droits de reproduction]

Thanks for the invitation.

Copibec is a copyright collective society representing over 25,000 Quebec authors and publishers. It administers the rights of reproduction on paper and digital reproduction of newspapers, books and magazines, including the artistic works that they contain. Bill C-32 calls into question each of the fundamental principles underlying copyright.

By introducing approximately 40 new exceptions, it takes away the exclusive right of authors to decide for themselves whether or not they will authorize the use of their works. It also strips creators and other copyright owners of compensation that they already receive, as in the case of use for the purposes of examinations or distance education. These exceptions jeopardize substantial revenues by introducing fair dealing for education purposes—a vague and unnecessary concept. They compromise the development of new markets or existing markets, such as the reproduction of a work to display it for educational purposes or training, the production of non-commercial user-generated content, or reproduction for private purposes. What will be left of the fundamental principles which underlie copyright if authors are denied the right to dispose of their works as they see fit and to receive compensation? All that is left is the right to put digital locks on their works.

That solution does not suit the copyright owners represented by Copibec. Why? Because it is impossible to put a digital lock on a 200-page book or on the hard copy of a magazine. Furthermore, copyright owners have generally decided to provide digital books without locks to better meet consumer needs by fostering interoperable formats. Quebec publishers prefer to incorporate a watermark into the digital version of a book to allow traceability in cases of infringement. However, this is not a solution that copyright owners represented by Copibec consider acceptable, particularly because the largest users of literary works are institutional users or individuals, who almost always make copies for non commercial purposes. Bill C-32 provides for pre-determined damages ranging from $100 to $5,000 for these purposes, which is clearly less than it costs to institute court proceedings.

The bill attacks another fundamental principle of copyright: collective administration. By eliminating or jeopardizing the payment of large amounts to creators, the bill weakens copyright collectives, which withhold a percentage of the royalties collected to carry on their operations. And yet copyright collectives are an essential link in the chain, when it comes to copyright administration. That is what the legislation acknowledges in its definition of “commercially available”, which is found in section 2 and includes both purchasing a work on the market and obtaining a work through a license granted by the copyright collective. It is odd that Bill C-32 eliminates all references to collective administration in every case where mention is made of commercially available work.

If access to copyrighted works is guaranteed, why propose so many exceptions? On the contrary, use of exceptions must be sparing and carefully thought out, because they always involve an expropriation of rights. That is why the international community adopted strict rules in that area under the Berne Convention, signed by Canada in 1928, which have been since been included in many different treaties, including the well known WIPO treaties.

It is therefore surprising to see that the three-step test was not even considered during the drafting of Bill C-32. That test provides that exceptions must be limited to special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

The proposal to broaden fair use to add education will jeopardize the collection of more than $10 million in Quebec. It will certainly cause unreasonable prejudice to copyright owners and probably breaches Canada's international commitments. That is certainly the view of a number of stakeholders, including the International Association of Scientific, Technical and Medical Publishers, the International Publishers Association and the Quebec Bar, to name only a few.

Teachers will also have to cope with the vague wording of this provision, which will only be defined over time, through long and costly court proceedings. This provision is unnecessary, because access to copyrighted works is already guaranteed through the licenses administered by copyright collectives across Canada.

Last December, Ms. Line Beauchamp, the Quebec Minister of Education, Recreation and Sport expressed her disagreement with the education exception proposed in Bill C-32. Very recently, the Quebec Federation of School Boards, an important representative of users, as well as all the primary and secondary French language schools in Quebec, also expressed its opposition to Bill C-32. I am going to give that organization the last word. Here is how it stated its position:

The adoption of this change would not only adversely affect the right of authors to allow or disallow the use of their work, but also adversely affect their right to fair compensation. We understand that the government wants to facilitate access to copyright-protected works, but we believe that access to a copyrighted work must occur in a context where the author's rights are respected. Accepting the principle that access to copyrighted works is synonymous with offering them free of charge would negate the importance of authors' contribution to our children's education, and weaken the school publishing sector. Moreover, the concept of fair use for education purposes is imprecise and would not allow educational institutions to apply clear rules to copyright administration, something that current agreements with copyright collectives now enable them to do.

Thank you.

[Alexander Crawley, Executive Director, Professional Writers Association of Canada]

Thank you very much.

Good afternoon. My name is Alexander Crawley. I am executive director of the Professional Writers Association of Canada.

We represent the interests of Canadian freelance writers of non-fiction works and have been doing so for 35 years. We welcome this opportunity to offer our perspective on this reform process that is so vital to Canada's success in adapting our law to enable a thriving digital economy.

We will begin by reflecting on the committee process itself and will then highlight the issues that most affect writers and the direction we feel you must take to balance and strengthen Bill C-32. Finally, we will tell you what we like in Bill C-32.

First, we take you back to the observation of a witness you heard on the first day you opened the process beyond politicians and civil servants. Professor D'Agostino, of IP Osgoode, accurately informed you that individual creators are caught between corporate users of their works--that is, publishers, manufacturers, distributors, and retailers, and in the digital area, web-based services and ISPs--and the final recipients of our works, the individual users as consumers and as citizens. We need a law that clarifies our relationship with both types of users.

With appropriate recognition of our rights, we can negotiate with our industry partners, but we can't sustain our businesses without the fundamental principle, in the law, of compensation for use.

Next, we remind you of the testimony of freelance writer Douglas Arthur Brown on December 13 of last year. Mr. Brown provided clear evidence that illegal copying in the education sector is a real danger that is going on even now, and that by adding the term “education” under fair dealing, this bill will bring about a huge spike in such market-destroying behaviour.

We finally go to February 1, when Bill Freeman, freelance writer, and Marvin Dolgay, freelance composer, clearly outlined how this bill, as drafted, imperils their livelihoods and--more significantly, from the public interest perpective--imperils the very possibility of a new generation of creative Canadians sustaining themselves and a digital economy.

Our members' writings appear in magazines and newspapers of every size and description and in every region of Canada, online and in print. Digital technologies make their replication easy and efficient and provide the diversity of voices that give Canadians access to the rich and varied perspectives on which a healthy society depends. All of our writers encourage the copying of these works by educational institutions, corporations, government agencies, ancillary publications, online aggregators, and, of course, individual Canadians, but as with any small business, they need to be compensated for these uses of their property.

A strong system of collective rights administration is by far the most practical method of assuring appropriate compensation for these secondary uses that abound in the digital marketplace. We can and will continue to negotiate primary uses with our partners in industry. Everyone recognizes that models are changing and that the new tools can allow creators to reach the market much more efficiently than ever before. Indeed, we think we can compete with old models if we are allowed to develop our businesses through appropriate recognition of our rights in our own works.

For PWAC, the Professional Writers Association of Canada, these are our priority issues with Bill C-32.

First is the addition of “education” as an exception under fair dealing. This will deprive PWAC members of between $500 and $5,000 a year in income from secondary uses through our collectives. If the committee can't find its way to delete this provision for political reasons, we ask that at a minimum you define its application in such a way as to strengthen, not weaken, collective rights administration.

Second, on the test for fairness under fair dealing, we support the inclusion of the Berne three-step test that fulfils our international obligations, and we are heartened by indications that the committee will invoke it through the amending process. We certainly hope you do. We prefer CCH, by far, for obvious reasons.

Third, concerning the limit to statutory damages, the recent settlements in the class action suit Robertson v. Thomson and a subsequent suit involving Torstar Corporation and other publishers showed the level of damages to freelance writers that infringement can cause. The amounts there come to over $15 million paid to freelancers by major Canadian publishers. We have provided copies of the Supreme Court decision, in the first case, for your better understanding of the issue.

We have no objection to the concept of limiting damages for individual non-commercial infringement, but the system currently in place for institutional and commercial infringements should be retained.

With respect to the safe harbour provisions for ISPs, we need those who deliver our works to their markets to actively support the principle of compensation for use. Notice and notice will not change the culture of rampant illegal copying. We need a graduated response that contains a real incentive to diminish it. Better yet would be a new business model based on a true partnership with ISPs along the lines proposed by the Songwriters Association of Canada, but we understand that this is beyond the scope of this committee.

These are our primary issues with Bill C-32, as drafted.

On the positive side, we do appreciate some of the provisions of the bill that extend rights recognition to our fellow freelancers, such as photographers and performers. However, we fear that the weakening of our markets through the new exceptions undermines even these gains.

As to the much debated technical protection measures, we acknowledge that our industry partners in the corporate sector may find them useful, but they do not give individual creators the tools we need to fully exploit digital technology through innovation.

Thanks for your attention. I'll be glad to answer your questions, to the best of my ability, on our oral presentation or on the written brief we have provided.

[The Chair, Conservative, Gord Brown]

I call this 12th meeting of the special Legislative Committee on Bill C-32 back to order.

For the second hour, we have three witnesses with us. We have, from the Professional Writers Association of Canada, Alexander Crawley, executive director; from the Société québécoise de gestion collective des droits de reproduction, Hélène Messier, executive director; and from Union des écrivaines et des écrivains québécois, Danièle Simpson, présidente.

For five minutes, we'll hear from Mr. Crawley.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CCLA wants to make five submissions.

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

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

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

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

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

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

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

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

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

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

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

Thank you very much.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, Gord Brown]

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

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

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

[Ferne Downey]

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

I'm going to ask Stephen to comment.

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

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

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

“les droits d'auteur”,

the rights of the author.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Daniel Drapeau]

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

[Daniel Drapeau]

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

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

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

[Dean Del Mastro, Conservative, Peterborough, ON]

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

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

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

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

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

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

[Dean Del Mastro, Conservative, Peterborough, ON]

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

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

[Dean Del Mastro, Conservative, Peterborough, ON]

Yes. Thanks, Mr. Chairman.

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

[Daniel Drapeau]

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

an equitable bill of discovery.

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

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

[Daniel Drapeau]

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

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

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

[Daniel Drapeau]

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

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

[Roger Pomerleau, Bloc, Drummond, QC]

Thank you Mr. Chair.

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

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

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

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

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

[Daniel Drapeau]

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

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

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

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

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

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

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

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

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

Canadian Broadcasting Corporation

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

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

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

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

Thank you, Mr. Chairman.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That concludes my opening remarks.

Howard or I will be happy to take your questions.

Thank you.

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

Okay. Thank you very much.

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

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

Yes, I know. Small, medium-size and large businesses agree on one point: to do better business, you have to find win-win situations. Everybody has to win; our supplier, our business, our consumer and our client have to win. Do you agree with me, Mr. Beatty? I know why you're very happy about Bill C-32. Despite your association's name, Mr. Wilson, we can see that Bill C-32 isn't very balanced.

I'll take a few minutes to explain to you why that is. More particularly, the creators of artistic content are the big losers. First, since the private copying system hasn't been modernized, they lose at least $13.8 million a year. As a result of the exception for education, they lose $40 million a year. I'm taking shortcuts because you seem to have a clear understanding of the bill. With the abolition of ephemeral recording, they lose at least $21 million a year. That's a minimum. I noticed that other amounts were also paid, but I didn't include them in my initial calculation. That totals $74 million a year.

There's the exception for YouTube, whose content is generated by users. In France, since there's no such exception, France's Société des auteurs-compositeurs français, SACEM, has managed to negotiate with Google for royalties to be paid. And even there, some money is being lost. It's at least $74 million annually that the creators, artists and crafts people are losing under Bill C-32. Do they consider that balanced? No. You know how to talk about money; you know very well they can't find that balanced. These aren't subsidies, but rather money that is being taken out of their pockets, money they normally used to receive.

In addition, yesterday, the Standing Committee on Canadian Heritage heard from the people responsible for the copyright bill at the Department of Industry and the Department of Canadian Heritage. I put the question to certain individuals around the table. I asked them what artists would gain with Bill C-32 and for them to name one bankable gain that they could make money with? There are indeed a few more rights, such as performers' rights, but that's not bankable. A power relationship is being established; the artists are happy, thank you very much, but that's not bankable.

So this is a bill that takes at least $74 million a year away from artists who earn an average of $23,000 a year and that gives them nothing more, no way to make more money. Creators can be viewed as suppliers. They're the ones who fill all the Internet sites of this world. The programming of 80% of radio stations is filled with music. When our suppliers no longer produce because we've slit their throats, what do we do? Will your radio stations want to go to the United States to get American music? When the clientele, Canadian and Quebec consumers, see that, how will they react? As for getting American music, let's go after American broadcasters. They'll change stations.

I want to outline this problem of lack of balance to you. I know you're very intelligent people. You know business, the value of money, and you know what it means to make a situation more profitable for everybody. So I'll let you speak.

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

Thank you very much for being here this morning and for giving your testimony.

I'd like to start off by focusing on TPMs or digital locks and the issue of the bill as it currently exists, which of course says very clearly that if you circumvent an existing digital lock you are breaking the law. The Liberal Party is very clear on its position that it agrees that if you are circumventing a product with a digital lock for commercial purposes—pirating or what have you—that is breaking the law, and we are against breaking the law. However, we do have a different position with respect to people buying a product and format shifting, copying, transferring it to another personal device for their personal purposes. We've been clear on this since Bill C-60, one of the predecessors of Bill C-32.

I'd like to start with Mr. Kerr-Wilson on this issue because he referred to it briefly in his opening comments. Would you please—and then, Mr. Beatty—explain your position with respect to the use of a product with a digital lock but in the case where it is strictly for personal purposes?

[Perrin Beatty, President and Chief Executive Officer, Canadian Chamber of Commerce]

Thank you very much, Mr. Chairman.

I'm delighted to be here, and I'm very pleased to have with me Mr. Lee Webster, who's a partner with Osler's, and who's also the chair of the Canadian chamber's intellectual property committee and a member of the Canadian Intellectual Property Council.

Mr. Chairman, our members see the bill as a piece of the larger puzzle of innovation in Canada. Many companies, big and small, rely on the protection of intellectual property rights to maintain their businesses. Updated copyright legislation will bring Canada in line with other major industrialized countries and establish rules of the road for downloading and file sharing on the Internet. It will also position Canada to finally ratify the WIPO Internet treaties that Canada signed in 1997.

Some say that Bill C-32 will prevent Canadians from listening to music and watching movies on their portable devices. That's false!

Businesses in Canada don't want to stop people from enjoying their media, but rules do have to be established so that illegal commercial operations are stopped. What we need is to establish a marketplace framework that will support development of new digital products, services, platforms, and business models and make it clear what kinds of behaviour are legitimate and what kinds are prohibited. We have to strike a balance between the interests of consumers and those of rights holders.

Generally, we believe the government has done a good job in striking the right balance, and we support the principles of the legislation. I can certainly tell you, Mr. Chairman, that striking the appropriate balance to establish good public policy is not an easy task. I can commiserate because I had the responsibility for the copyright file when I was Minister of Communications in the early 1990s. Both the Conservatives and the Liberals put legislation on the table in recent years only to have the bills die on the order paper, and we're anxious to see this new bill passed to clarify rights and responsibilities for both businesses and consumers. So perhaps the third time is a charm.

Now, strong copyright protection will benefit communities across Canada, and here are some examples. In Toronto, there are over 3,300 high-tech companies, generating revenues over $32.5 billion annually and employing 148,000 people. In Kitchener-Waterloo, there are over 700 high-tech companies, generating $18 billion annually and employing 30,000 people, with over 200 burgeoning start-ups. The Canadian video game industry generates billions annually and employs over 14,000 people across the country. Many major studios are in the Montreal area, such as Ubisoft and Electronic Arts and Behaviour, while St. Catharines is home to a prominent video game company, Silicon Knights, which employs over 100 people in high-value jobs.

In 2009-2010, the Quebec film and television industry generated an estimated $1.2 billion annually and created more than 36,000 jobs in the province.

IP is the economic currency of the future. Properly applied, IP rights drive job creation, economic growth, and innovation. As I mentioned, copyright is only part of the puzzle; patent and brand protection and promotion is also a key element in attracting and retaining businesses in Canada.

Leading economies around the world have made IP protection a priority. Japan has created an IP strategy council led by the Japanese Prime Minister. In France, President Nicolas Sarkozy heads an anti-piracy commission to curtail Internet piracy. Clearly, other nations are effecting major changes in IP protection. If Canada does not soon follow suit, Canadian businesses risk being left at the periphery of the global economy.

By defining and better protecting IP rights, we'll develop a marketplace that rewards investments in innovation and creation. It will foster new business models that will lead to stronger economic growth, job creation, and prosperity. In modern developed nations like Canada, where services and innovation have become key economic drivers, and given our emphasis on the knowledge economy, doing so has never been more important.

Let's fix the unintended consequences in the drafting of the legislation and get this copyright bill passed. It's desperately needed to provide certainty to Canadian businesses. Mr. Chair, I simply plead with the committee this way. Let's not let the perfect be the enemy of the good. This represents our best chance to modernize.

I was looking at some of the comments that were made in Parliament and elsewhere. I think it may have been Mr. Angus who had made reference to the WIPO treaties reaching back into the past century. I was reminded of George Michael's CD, Songs from the Last Century. What we're talking about here are principles to update from the last century and to bring us into the 21st century. It's something that's critically important.

Since our time is limited for opening remarks, Lee will get into specific areas where we need amendments during the question period. Just to put it very simply, we need to see some clarifications or improvements in the areas of enabling infringement, encryption research, computer and network security, interoperability, reverse-engineering of software, user-generated content, online service provider liability or safe harbours, private copying and backups, and statutory damages.

Thank you, Mr. Chairman. We'd be very pleased to respond to questions.

[Jay Kerr-Wilson, Representative, Business Coalition for Balanced Copyright]

Thank you very much, Mr. Chairman and members of the committee.

My name is Jay Kerr-Wilson, and I am here today on behalf of the members of the Business Coalition for Balanced Copyright.

Thank you very much for giving us the opportunity to present our views on Bill C-32.

The members of the coalition include individual companies and trade associations representing a broad spectrum of the communications, technology, broadcasting, retail, and Internet industries. The one thing our members have in common is that they provide the essential links between creators and consumers.

The issues addressed in today's presentation are those on which there is agreement among the coalition members. Some individual members may wish to address additional questions or concerns when they appear before the committee on their own behalf.

We believe that Canada's copyright laws should focus on two fundamental and interrelated objectives: first, to deter infringing activity; and second, to promote open and efficient markets for legitimate distribution of copyrighted works.

We disagree with the notion that copyright legislation is either good for consumers or good for creators. We believe that by promoting the development of a vibrant digital economy, a balanced approach to copyright legislation can serve the interests of creators, distributors, and consumers.

We also believe that Bill C-32 goes a long way towards striking this balance, and we support its passage in a timely manner.

This doesn't mean the coalition thinks the legislation is perfect or couldn't benefit from some minor changes to provide greater clarity and certainty. In fact, we have submitted a number of proposed changes that we would like the committee to consider as part of its review.

First, Bill C-32 provides limited liability for content hosting services. The ministers have repeatedly stated that these provisions are intended to remove barriers to the introduction of innovative remote storage services, including cloud computing and network PVRs. We are concerned, however, that while the existing language limits liability for the reproduction of a work that is stored using such a service, it still leaves potential liability for any transmissions of the hosted content even back to the person who posted it in the first place.

Second, Bill C-32 would create liability for those people who enable others to engage in copyright infringement. We support this provision as an important tool for rights holders to protect themselves against the widespread, unauthorized distribution of their works. We are concerned, however, that the provision as drafted does not adequately distinguish between those individuals who provide services intending that those services be used to infringe copyright and innocent actors who merely provide links to Internet sites but who do not actively promote or encourage infringement.

We are also sensitive to the concern of rights holders that only prohibiting those services that are primarily designed to enable acts of infringement may be too narrow. We therefore support amending the provision to prohibit those services that are designed or operated primarily to enable acts of infringement.

Third, we support providing legal protection for technological protection measures, or digital locks. However, we do not believe that the use of digital copy control locks should prevent consumers from relying on the personal use exceptions such as format shifting or time shifting.

Fourth, we support the provision that would permit broadcasters to transfer musical works onto a different format for a limited time without incurring additional copyright obligations. We believe that a similar amendment should be made to the provision that lets local television stations or community channels tape live events such as parades and concerts for later broadcast.

Fifth, we support the provisions that would impose on ISPs the obligation to implement a notice and notice system. Many Canadian ISPs have engaged in voluntary notice and notice systems for several years, and other countries are now beginning to adopt similar obligations. However, we are concerned that the bill would not provide any time for ISPs to implement the additional obligations that would be imposed by the legislation. We recommend that the notice obligations only come into force once the minister has enacted regulations prescribing the forms of the notice and the fees that can be recovered, and after a sufficient period, for ISPs to implement the necessary systems to comply with all of the obligations.

Sixth, we support the inclusion of an exception for user-generated content. However, we have heard the concerns expressed by rights holders about the potential for abuse of the exception as drafted. Therefore, we agree that the provision could be amended to require that any use of the works in user-generated content be fair, in addition to the conditions that have already been proposed.

Finally, we strongly oppose the introduction of new levies or the extension of existing levies to cover private copying on digital devices. We recognize that the bill does not deal with the private copying levy, but we are aware that the issue has been raised on several occasions before the committee. From our perspective, there are insurmountable problems with such a levy.

Thank you for giving us the time to present these recommendations. I look forward to answering any questions you may have.

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

Good morning, everyone. We're going to call this 10th meeting of the special Legislative Committee on Bill C-32 to order.

For the first hour we have witnesses from the Business Coalition for Balanced Copyright, Jay Kerr-Wilson; and also from the Canadian Chamber of Commerce, Perrin Beatty and Lee Webster.

We will start with Mr. Kerr-Wilson for five minutes. You have the floor.

[Barbara Motzney]

Bill C-32 provides creators with new rights and tools for managing their content in the digital environment.

I don't know if there's time to go over each one in detail, but just to give you an idea, there is the making available right, the distribution right, information on the copyright system, the protection of this type of information, the reproduction right for performers, the term of protection for sound recordings.There are also several provisions for photographers. There are technical protection measures as an example of new tools for creators. There are also provisions for enablers, that is, those who facilitate copyright infringement in a digital environment or—

online piracy.

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

I want to draw your attention to what I feel is an inconsistency. You can be the judge of whether it is a major or a minor one.

On page 8, you talk about ways of ensuring that creators of content are compensated for their work. Ms. Cliff, at the beginning you said that Canadian businessmen—I assume you were talking about creators—have all they need right now.

However, upon reading Bill C-32 on copyright, currently before us, we realize that three new provisions will result in artists losing $74 million in copyright fees. First, there is the non-modernization of the private copy system, which, as is does not apply to digital audio players, results in artists losing an average of $13.8 million a year. This is directly related to our topic of discussion. The private copy system exists, but it applies to older material. Bill C-32 does not cover new material, such as MP3s or iPods. Because of this, artists are losing $13.8 million a year.

Similarly, the education exemption translates into a $40-million annual loss for the artist. This is because you want to enable those involved in education to get what they need on the Internet without having to pay copyright fees.

There is also the abolition of ephemeral recording, which you talked about earlier. The reason why broadcasters are asking for a royalty holiday—if I may call it that—on ephemeral recording is that the material has become digital. Now that it's costing them less, they want to pay less. This is resulting in artists losing another $21 million a year.

The losses add up to at least $74 million a year. That amount can also be much higher.

The YouTube exemption, that is, the exemption on user-generated content, means additional lost income for the artist. Collectives from around the world have signed a contract with Google to pay royalties on the music used on YouTube. On September 30, 2010, the Société des auteurs, compositeurs et éditeurs de musique de France, SACEM, announced the signing of such an agreement with YouTube. By adding the YouTube exemption, which applies to user-generated content, you are pulling the rug out from under Canadian collectives that could have negotiated the same royalty contracts with Google or YouTube.

Maybe you could set me straight on this, but I don't see any other rights in Bill C-32 that will be marketable, except perhaps in the case of photographers. However, it's also not clear that there will be more such rights than there are today. I don't see anything in Bill C-32 that would enable creators and artists to collect new royalties to offset the $74 million they're losing. I also don't see any business opportunities related to YouTube, Google and other similar websites.

[Barbara Motzney]

Bill C-32 would make the circumvention of a technological protection measure a copyright infringement, so what Ms. Downie mentioned as being the administration would come into play for this as a violation of copyright.

[Barbara Motzney]

I can start off.

Just to be very clear, the broadcasters pay a tariff to copyright owners for the right to broadcast music. Currently they also pay a tariff for making the temporary technical reproductions that are merely incidental to that broadcasting process.

Bill C-32 removes the requirement for broadcasters to pay the tariff for these reproductions, while retaining the requirement to pay for the right to broadcast itself.

Twenty years ago, with the technology at that time, these payments didn't exist. Radio stations would play music directly from CDs with no reproductions, but technology has changed, and radio stations now broadcast via computers in a process that requires digital copies of songs to be made. Under current law, broadcasters are required to pay for these incidental copies. Removing this payment requirement will promote the adoption of new technologies in broadcasting and make the rules governing broadcasting technologically neutral.

Radio stations and record labels determine their business arrangements with broadcasters in the delivery of song tracks to radio stations for broadcasting. Copyright law, as marketplace framework law, is supposed to allow for and promote these kinds of market solutions. As technology evolves, the removal of the ephemeral recording exception makes this treatment of broadcasters technologically neutral.

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

We have seen an extreme reaction to both sides of the industry over the broadcast mechanical in Bill C-32. Is this provision fair, in light of what's happening in the industry?

[Barbara Motzney]

—to control how his works are made available online.

With regard to moral rights, those rights exist under the current Copyright Act for authors. Under Bill C-32, those rights are extended to performers.

[Barbara Motzney]

Thank you very much. I'll try to be really brief in highlighting the fact that Bill C-32 actually introduces new rights and protections for creators in the digital environment. The specific purpose of the bill is to deal with the digital environment, so to respond to your Justin Bieber question, under Bill C-32 he would have a new “making available” right, which would allow him to have a right—

Copyright

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

Mr. Speaker, following the example of the Quebec National Assembly, the Union des consommateurs, the Barreau du Québec and various groups of artists and artisans, including ADISQ and UDA, now the City of Montreal has also said that Bill C-32 should apply the principle of private copying and thereby guarantee that Quebec creators receive compensation in accordance with the value of their intellectual property. Contrary to the minister's scornful remark, it is not just a handful of musicians who oppose his bill.

When will the minister decide to make significant changes to his bill and give creators fair compensation?

[Reynolds Mastin]

They are. But what's very interesting, and I think it's important to underscore this, is that for certain business models and forms of content distribution for membership, they're absolutely integral and essential. There are other circumstances when our members won't use TPMs, particularly when they're trying to promote a show and they want to use different vehicles of content distribution to do that.

What's critical for our membership is that we have the choice to use them or not. That's what Bill C-32 enables our members to do.

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

Do you concur with the fact that Bill C-32 endeavours to bring us in line internationally, and is that important to your industry?

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

One of the things Bill C-32 certainly endeavours to do is to bring Canada's copyright laws in line with the international context, in line with our international partners.

When you're selling Canadian products around the world, why is that important to your industry?

[John Barrack]

Thank you, Mr. Chairman.

Mr. Chairman and members of the committee, thank you for inviting us to meet with you today.

The CMPA represents the interests of almost 400 companies engaged in the production and distribution of English-language television programs, feature films, and interactive media productions in all regions of Canada. In 2009-10, the industry was responsible for over $3.8 billion in production volume and the creation of over 90,000 jobs.

Our members produce Degrassi, Corner Gas, The Rick Mercer Report, and This Hour has 22 Minutes, to name a few. Our entire industry is also on tenterhooks to see whether Barney's Version and Incendies--both independently produced films--take home Oscars later this month at the Academy Awards.

As an association whose members are both owners and users of copyright, we recognize that copyright reform involves an exceptionally delicate balancing act. We will limit our remarks to five key issues that we believe are key to getting the balance right.

First, the CMPA fully supports the TPM provisions of Bill C-32. Protection for TPMs is critical to ensuring choice for both creators and consumers in the digital marketplace. TPMs enable independent producers to experiment with different business and content delivery models. They also provide a vehicle for maximizing the range of content and services available to consumers.

Where TPMs are overused or misused, consumers can and do respond by allocating their entertainment dollars elsewhere. But without them, the digital marketplace risks becoming a digital desert where less and less high-quality, professionally produced Canadian content gets made. This would be a huge loss, not only for Canadians but for consumers and citizens, and also for international audiences who love the content our members produce.

Second, we were very pleased to see that parody and satire would be added as protected activities under the fair dealing exemption. This would bring an end to the current uncertainty regarding parody and satire in Canadian copyright law, which can have a chilling effect on free speech, including political speech.

We're confident that all members of Parliament would support an amendment that would give Rick Mercer an even freer reign than he has already.

Reynolds.

[The Chair, Conservative, Gord Brown]

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

We have two witnesses from the same organization, John Barrack and Reynolds Mastin. I believe, Mr. Barrack, you're going to speak. Is that correct?

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

Thank you.

I believe Monsieur Pineau brought up

the YouTube issue,

the issue of so-called mashups and the provisions in the current proposed Bill C-32. I would like to know your position on this. Would you prefer there not be an exemption for mashups, or would you be happy if the exception was clearly defined so it actually said what was legal and what was not legal?

[Alain Pineau]

First of all, I think the ones that we support I have mentioned in my presentation, and I will find the page to go back to that. I'm not going to be specific about the people who come here and say they're very happy with the bill and say thank you and pass it tomorrow because it's very urgent. I think you have the list from them. We're saying, okay, it suits them and it's no skin off our nose. It's fine. You will get the list from them.

From us, I think some Bill C-32 elements are positive: distribution rights, the reproduction and moral rights for performers, the length of the protection of sound recordings, and the rights to photographers. The problem is that with the exemptions, many of these rights are undermined on the next page. That's the problem. You give rights to photographers and then you put them in jeopardy through the exemptions that you grant on the other side. It's...what's the expression?

[Alain Pineau]

I completely agree with that and about the principle. That is why this is a fallback position for us rather than saying that they cannot remove it because, politically, it is motherhood and apple pie. They should at least change it to soften the impact.

The problem is that impacts are mixed in Bill C-32. For example, in a different context, there can be an exemption for something else. When we look at it in this way, we have to say that if you want the bill to be passed, you have to remove all that, because it will be extremely harmful.

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

So do you want us to pass Bill C-32 in its current form?

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

Thank you very much.

Mr. Pineau, you have indicated in your presentation that the major problem with Bill C-32 is that it fails to recognize the existence of two very different kinds of markets. You have said that the bill proposes the same solutions for both markets. When I was reading that, I told myself that it really is a key aspect. It really is a question about striking a balance between creators and broadcasters. And we learned that this had been the case for all legislation on copyright.

You are saying that creators are the injured party. You used the example of the digital lock. Could you tell us more about the imbalance you have noticed, especially in terms of digital locks? We see very clearly that the bill is certainly not built around remuneration for artists. In fact, as you also mentioned, they are being deprived of sources of income.

We are also under the impression that the people who designed the bill think that families are going to buy two identical CDs or they will download things twice if there's a digital lock. I prefer not to start labelling this way of seeing things, but let's just say that it's completely ridiculous.

[Alain Pineau]

For three and a half months, the Canadian Conference of the Arts has been working with its members and other people around the table on this issue. We have been trying to reach common ground. What you see on the table are our common positions on what needs to be done to Bill C-32. Our members, who are experts in various fields, will be making more specific proposals.

[Marvin Dolgay, Vice-Chair, President of Screen Composers Guild of Canada, Creators' Copyright Coalition]

Thank you, Bill, and good morning to everybody.

I earn my living solely as a creator. I'm a musician and a screen composer. Like the vast majority of my colleagues, I'm not a big star, I'm not a household name, I have no T-shirts to sell, nobody pays big ticket prices to see me, and there are no product endorsements in my future.

In actuality, we make our primary living from secondary income streams. I'm a member of SOCAN, SODRAC, CFM, and ACTRA. These collectives efficiently distribute the revenues collected from our rights to us. Be aware that even with all these revenue streams, none of these income sources provide a decent living on their own. We rely on the strength of our combined collectives.

Bill C-32, as written, is meant to modernize consumers' access and use of copyright-protected works. Let me be clear: we want the consumer to consume our works. That is how a successful business model works. However, our ability to make a living could be stripped away with Bill C-32's pages of exceptions, while others are making money from our content.

YouTube generates money from content, but the bill creates an exception so we do not get paid. Broadcasters generate money from content, but the bill creates an exception, so we lose our income from broadcast mechanicals. Digital recording devices generate money from the very existence and essence of our content, but the bill creates an exception that effectively eliminates our private copying royalty income. Again, we do not get paid. Educators value and use our content in the classroom, but, again, we do not get paid. This is not balance.

What my colleagues and I need is simple. We need to be treated like any other legitimate business sector that creates a product of value. We want our end users to have access to our work and we need to be paid accordingly for its consumption. I'm not a lawyer, a lobbyist, a politician, or a bureaucrat. I'm not an educator, a broadcast or ISP executive or employee, but if I were, there would be no question that I would be paid for my work.

We are very small businesses, and in order to survive we must be allowed to have the tools to receive payment for the success of our inventory.

Mr. Freeman and I look forward to answering any of your questions. Thank you very much.

[Bill Freeman]

Thank you very much.

Marvin Dolgay and I are representing the Creators' Copyright Coalition. Mr. Dolgay is a musician and composer and the president of the Screen Composers Guild of Canada. He's one of Canada's leading composers of music for film and television. He's also the vice-chair of the CCC.

I'm Bill Freeman. I'm a former chair of The Writers' Union of Canada, and I'm the chair of the Creators' Copyright Coalition. I write books for children, adult non-fiction, plays, and documentary film scripts.

We're here representing the CCC, an organization of 17 of the major creative groups, which represent about 100,000 creators.

I understand that you have received our broader brief. I'm not going to go into that in detail. I'm just going to make some additional comments.

When Canadians think of creators, they usually think of the rich and famous, but Marvin and I are much more typical. Like small business people, we earn our living from different sources. We do a little better than most, but surveys show that incomes of creators are low, somewhere between $15,000 and $20,000 per annum, from their creative works. Many have alternate jobs. That's how they support themselves and their families.

Creators believe that copyright legislation should be designed to encourage creation. Writers, musicians, visual artists, actors, and other creators are on the very cusp of the digital revolution, and that revolution should stimulate a flurry of new creations. But if exceptions are created in the Copyright Act so that there's no protection for their work, it could become a dead zone for professional creators, because they cannot earn a living from the material distributed on the Internet. At the moment, we fear that Bill C-32 will create that dead zone.

Let me make three general points about Bill C-32. First, every creator we know about wants his or her works to be widely distributed. We don't want it locked up. That's why they've gone to such effort, after all, and the pain, to create their works. But they do want to be paid for what they do. The principle guiding the act should be payment for use. It's as simple as that. Bill C-32 goes in the opposite direction in some cases by making a host of new exceptions, and those exceptions will be damaging to many creators.

Second, Bill C-32, frankly, is filled with confusion. We've been told by lawyers that it's overly broad and unclear in many places and will lead to complicated litigation that will cost millions of dollars and will take years to resolve. That's probably the worst thing you can do, because creators will have to pay for their share of that litigation. All that will happen is that you'll enrich the lawyers, and it'll come out of our pocketbooks.

Third, the Internet has changed the business model for almost every creator. The secondary use of material--that is, the chapter of a novel excerpted in a public school or the song on the radio or the audiovisual clip--is increasingly how works are being distributed today. There's nothing wrong with that. It's collective societies, though, who manage those secondary rights for creators, and the legislation, we feel, should strengthen the collective society. Bill C-32, in many instances, does just the opposite. It weakens SOCAN, certainly Access Copyright, and all the other collective societies that manage rights.

I'm going to ask Marvin to make some comments on the impact of Bill C-32.

[Alain Pineau]

Yes, I will do that.

I'll just point out that the current bill erases $126 million in current revenue for artists with all the exceptions, and that's a major blow to those people.

This bill fails to provide a clear, predictable framework for the rights of creators and for the users of these rights. As the Quebec Bar Association has aptly pointed out, the long list of new, expanded and often ill-defined exceptions will create uncertainty in the marketplace.

There is at the end of this presentation something you can ask me questions about. It is the list of the main areas to amend in Bill C-32.

Thank you very much.

[Alain Pineau]

Thank you.

My name Alain Pineau and I'm the national director of the Canadian Conference of the Arts.

I will jump immediately to the second paragraph.

When it comes to copyright, we at the CCA have members who are rights holders and members who are rights users. So we are quite sensitive to the position you may find yourselves in as lawmakers when it comes to this prickly pear.

It is from the broad and unique perspective of the Canadian Conference of the Arts that I come here to comment on Bill C-32. I will concentrate on the big picture and let our member organizations propose specific amendments to ensure the Copyright Act really works for the benefit of the Canadian creative economy, of Canadian consumers and, obviously, of our artists and creators who should be at the centre of our preoccupations.

Copyright is a key piece of any national digital strategy and should be one of the cornerstones on which Canada defines its place in the global knowledge economy. Failure to amend the legislation and salvage C-32's more positive provisions could severely compromise Canada’s cultural and economic performance.

I am going to skip the next two paragraphs.

Let me start with the positive.

First, we all agree that it is high time that Canada update its Copyright Act, and we thank the government for attempting once again to bring this important piece of legislation up to date and in line with our international obligations. We share the urgency, but not at any cost.

Second, it is clear that Bill C-32 satisfies a number of people, particularly in the corporate world and the entertainment, software, recording, and cinematographic industries. Our members rejoice that those components of the cultural sector are satisfied with the bill, so I am not here to dispute the lists of happy campers, which Mr. Del Mastro has quoted often, both in the House and here, but I will point to the still longer list of people for whom Bill C-32, as it now stands, is hurtful.

Third, on the positive side, Bill C-32 contains elements that are viewed as positive by artists, creators, and cultural workers in general. I refer here to the distribution right, the reproduction and moral rights for performers, the length of protection of sound recordings, and the rights to photographers.

Let me now move to the negative aspects of Bill C-32. The bill's main flaw is that it fails to recognize the existence of at least two very different kinds of markets. The bill proposes a one-size-fits-all approach, which clearly satisfies the big players and all international company interests but which is far less important to the majority of Canadian artists.

The proponents of the bill argue that it gives artists and creators the tools necessary to protect and monetize their work and develop new markets: they simply have to put digital locks on their works and resort to the justice system to have their rights respected. Locks trump exceptions, which has Professor Geist up in arms and does not satisfy the education community either.

But since locks are not an option for most artists and individual content creators, the bill is rightly perceived by them as a de facto expropriation of their property rights without compensation.

The lock-litigation approach is disconnected from the realities of life of most Canadian artists and creators. The world of most Canadian artists is not that of Ubisoft or that of CRIA. Forty-two per cent of Canadian artists are self-employed. They don't have the resources to monitor Internet and wireless users to see if they are infringing their property rights. Because they are busy creating their art and developing new business models that seize upon the opportunities of direct access to their audiences, they don't have the time or financial resources to launch complicated court cases against those who illegally copy their work, whether for commercial or non-commercial use.

The unprecedented YouTube exception and the broad fair dealing purposes included in C-32 turn current copyright law on its head by signalling to users that they can infringe copyright as much as they want until someone sues them for damages. Even these are limited by the bill in such a way as to favour intentional infringement. To have their rights respected, the creator, publisher or producer must demonstrate that the market for their works has been significantly damaged, a notoriously difficult burden of proof.

The challenges they may face are perfectly illustrated by the case of Claude Robinson, who has been in litigation for the past 15 years to defend rights, which this bill will jeopardize further if not amended.

For those of you who are not familiar with Claude Robinson's case, I've added a summary at the end of this presentation, which of course I will not read.

The precarious situation of self-employed artists was recognized by a previous Conservative government when it adopted the Status of the Artist Act in 1992. This act created the possibility for individual artists and self-employed creators to be represented by collectives.

In order to facilitate access to their works and ensure proper compensation, over the past 20 years artists have established a number of organizations responsible for collecting and distributing royalties to artists and for defending their interests in front of regulatory bodies and tribunals. Collective societies provide consumers with easy access to copyright-protected content and rights holders with efficient management for many uses of their works, replacing numerous uneconomic, low-value transactions between creators and consumers, for their mutual benefit.

One of the core problems--

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

Good morning, everyone.

We're going to call this ninth meeting of the special Legislative Committee on Bill C-32 to order.

I'd like to wish everyone a happy new year, now that we're back in action, moving this bill through the legislative process.

As part of that, we now have a new clerk, so I'd like to introduce to the committee our new clerk, Andrew Chaplin. Welcome, Andrew.

For the first hour we have a number of witnesses. We have Alain Pineau from the Canadian Conference of the Arts. We have Bill Freeman from the Creators' Copyright Coalition, as well as Marvin Dolgay, president of the Screen Composers Guild of Canada.

We will have five minutes from each of our witnesses and then we'll start the questions around the table.

Mr. Pineau....

[Robert Ready]

Some of our major trading partners, the United States and the European Union, for example, have, for a number of years, been concerned that Canada's domestic framework in this area doesn't meet international best practice and could be improved. That is one of the rationales for moving forward on a number of fronts on intellectual property. The international enforcement aspects of moving forward, Bill C-32 and other initiatives, are part of the domestic response to those kinds of concerns from trading partners. So, yes, they do exist.

[Robert Ready]

Chairman, it's not within my competence to make a judgment with respect to the suitability or applicability of Bill C-32. We've consulted, in the context of these negotiations, with those officials who are responsible for that package of measures. We have delivered an agreement that we believe respects the content of what it is they're trying to do. But it's not the competence of Foreign Affairs and International Trade to make a determination as to whether one aspect or another is an appropriate element in that legislation.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much.

Thank you for your time here this afternoon.

I just have a couple of questions, very briefly.

When we look at the international legal framework with respect to copyright and protection of copyrighted materials, and specifically, when you look at Bill C-32, do you think it adequately addresses the framework and some of the shortcomings that we see in the current copyright law? Is this something that you see as a progressive and positive step moving forward?

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

I apologize for interrupting you, but my time is limited.

What will the Canadian government get out of signing this agreement? What would the difference be without it? What would it be if Bill C-32 were passed? That's not my wish, but let's just assume it is passed.

[Robert Ready]

Mr. Chairman, perhaps one way of looking at that question is to make a distinction between Bill C-32 and other elements of intellectual property protection, which are the substantive protections provided in domestic frameworks for intellectual property, and the enforcement of those elements of intellectual property protection. This treaty doesn't set new norms with respect to protection. It sets an enhanced framework for the enforcement of intellectual property, so it speaks to the kind of civil and criminal--

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

Very well. I didn't know when I would get another turn.

I have some trouble following your train of thought. First of all, the minister mentioned that the ACTA included high-level measures against piracy. That's what he said and I believe he used the expression “very high level”.

Everything you have told me and I have read so far leads me to believe that the agreement in question will not go beyond the current bill, Bill C-32. So what are your reasons for wanting to conclude this agreement at an international level when some countries go much further than this bill with things like the graduated response? I am not saying that it's a good thing. I am simply noting that they are probing further into the graduated response, among other things, in terms of holding Internet service providers accountable. But, in the agreement you are negotiating at the moment concurrently with the bill, it seems you are not going into as much detail because you want to be as general as possible. I just don't understand your reasons.

[Robert Ready]

I think the minister answered that question at a certain level of detail.

I could return to something that I mentioned in my introductory commentary.

We believe that the framework created in the ACTA is sufficiently broad to provide for the proposals that are currently in the legislative committee on Bill C-32, and sufficiently broad to address the different ways in which the various member countries of the ACTA grouping deal with some of these issues, which aren't the same across the membership.

We believe that a basic level of framework is provided by the ACTA, with scope for implementation in a Canadian context and in other countries.

[Edith St-Hilaire]

Yes, there are certain provisions. I did not want to go into detail concerning the digital chapter, since this is discussed in Bill C-32. There are certain provisions concerning—

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

It is not in the agreement.

So there would be a notice as is mentioned in Bill C-32.

[Robert Ready]

There are elements in Bill C-32 that relate to Canada's ability to comply with terms of WIPO agreements, and that, as they're carried over into the provisions of the ACTA, wouldn't be sufficient if the legislation wasn't passed.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

In order to be a signatory to an agreement like this one, certain national laws must allow us to sign the agreement or give us the credibility and necessary tools to do so.

I put the question clearly to the minister. If Bill C-32 or some other bill on copyright is not passed, we do not have the necessary tools to sign this agreement. The minister replied in the affirmative. I don't see why you can't tell me the same thing.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

You were there when I asked the minister what happens if Bill C-32 doesn't pass and we don't have that bill. I understand that we won't have the law necessary for us to sign that treaty. Do you agree with that?

[Peter Van Loan, Conservative, York—Simcoe, ON]

If Bill C-32 is not adopted, we will be...well, first of all, once it comes into our form and it's adopted, once it's in, we'd have to go through chapter and verse of the substance.

But if we did not have a legal basis to support the commitments or obligations under the active agreement, we would not be able to sign it. We will have to be able to undertake the legal obligations that it contemplates. Bill C-32, as it currently sits, supports the obligations that come under ACTA.

[Peter Van Loan, Conservative, York—Simcoe, ON]

I don't think that at this point in time it would be open to us to renegotiate the ACTA that has been completed. The question is whether or not Canada would be a party to it. In order to be a party to it, we would need to have laws that reflect it.

As presented to Parliament, Bill C-32 conforms, generally speaking, with the elements of the treaty, so that would be support of the implementation of the ACTA treaty.

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

You are in fact touching on one of my questions. I wanted to ask you how you intend to line up the agreement you are negotiating with the copyright bill that is currently under study. If I understand correctly, we are first going to study Bill C-32. Afterward, in light of the results obtained, you are going to once again sit down at the table with representatives of several large industrialized countries to resume negotiations. Is it that correct?

Democratic Representation Act

[Pierre Paquette, Bloc, Joliette, QC]

Mr. Speaker, I am extremely pleased to take part in this debate because that way, I, like my colleagues, am fulfilling the mission for which Quebeckers sent us to the House, which is to defend unconditionally the interests of the Quebec nation.

I would like to begin by saying that Bill C-12 on “democratic representation” is a direct attack on the Quebec nation. I am here to say that the Bloc Québécois, as we have been saying for months, will oppose this bill and do everything in its power to prevent the bill from passing. We currently have a minority government, and an election could be called in the next few weeks or the next few months. Our goal is to make this proposed marginalization of the Quebec nation a key issue in Quebec during the next election.

On November 22, 2006, the Conservative government moved a motion recognizing the existence of the Quebec nation. As a nation, we did not need this recognition to exist, but it was nonetheless interesting to see that almost all the parliamentarians in the House recognized the existence of this nation; that was a first. The government should have followed through on this recognition, should have walked the walk by introducing a series of measures.

Naturally, Bill C-12 does not walk the walk when it comes to recognizing the Quebec nation. On the contrary, this bill denies the existence of this nation and marginalizes its representation in federal institutions here, in the House of Commons.

The proportion of the population cannot be the only factor in determining the representation of each of the regions of Canada. If that were the case, Prince Edward Island, which currently has four members of Parliament, would certainly not have as many. Prince Edward Island has approximately the same number of people as a Montreal borough, which generally does not even have one member of Parliament. We understand that, and it is absolutely fine.

We have the same thing with the Îles de la Madeleine in the Quebec National Assembly. We understand that no democratic institution, including the House of Commons, can be an exact mathematical representation of the proportion of the population. This means that an important factor in the debate right now should be that the recognition of the Quebec nation must give it the political weight it requires in federal institutions to ensure that its voice be heard.

Unfortunately, Bill C-12 does the complete opposite. This was mentioned earlier by an NDP member. He said that with Bill C-12, the proportion of members from Quebec in the House will be less than its demographic weight. We believe that Quebec should always have at least 25% of the seats, as was the case at the time of the Charlottetown accords. We should all agree on that. My colleagues know that we are far from agreeing on that.

In Quebec, there is strong, virtually unanimous, opposition to Bill C-12. The Quebec National Assembly has, on several occasions, taken the stance that this bill should be withdrawn. Previously, before the September 2008 election, Bill C-56 gave 26 additional seats to the Canadian nation.

As of the moment the House of Commons acknowledged the existence of the Quebec nation, there have been at least two nations within the Canadian political landscape. In fact, there are more if you consider the first nations, but that is a separate acknowledgement or another way to handle nation-to-nation relationships. In this case, the Canadian political landscape is made up of two major nations: the Canadian nation and the Quebec nation. Bill C-56 would have given the Canadian nation an additional 26 seats, and we were opposed to that. We now have even more reason to object to Bill C-12, which would give it 30 seats.

It should also be mentioned that the Prime Minister and the Conservative Party did not act on Quebec's concerns about Bill C-56. What is worse, Bill C-12 is, in some ways, more reprehensible than Bill C-56. It is clear that this bill is about winning Canadian and Conservative votes. Not only did they not try to find a compromise and a balance to ensure that the Quebec nation is heard in federal institutions, but they introduced a bill that gives more to Ontario, at the expense of the Quebec nation, to ensure that they have more support in the next election in order to perhaps, eventually, win a majority government.

Bill C-12 is even more reprehensible because it adds four seats, which is a slap in the face to the Government of Quebec and the National Assembly after all the submissions they made. I want to remind this House that the 47 Bloc Québécois members and the 125 members of the National Assembly of Quebec are opposed to Bill C-12. That makes 172 out of 200 elected representatives in Quebec who are opposed to this bill, just as they were opposed to Bill C-56. More than 85% of MNAs and MPs from Quebec are opposed to this bill.

Canada should listen to the elected representatives of the Quebec nation and withdraw this bill. In addition, it should keep the proportion of MPs from Quebec at 25%. If the political will is there, formulas will always ensure that the democratic representation in the House reflects Canada's demographic reality, just as it does Quebec's demographic reality. There are other criteria that must be considered, because representation cannot be based on population alone. We can agree on formulas.

For example, if we increase the number of representatives from Canada in the House, we also have to increase the number of representatives from Quebec to keep the proportion at 25%. Quebec would be quite open to this solution, which might make it possible to reflect the demographic realities of faster-growing provinces in western Canada, such as British Columbia and Alberta.

We could also base our approach on what is done in the National Assembly of Quebec, where there are 125 seats and the chief electoral officer of Quebec regularly makes changes to reflect population movements. These are not easy debates. In this case, they take place in Quebec. Sometimes, some regions gain ridings while other regions lose them. But the National Assembly still keeps 125 seats. We could come up with a different breakdown of the current 308 seats in the House, while reserving 25% or so for members from Quebec.

It is not that we do not wish to allow Canada to change its representation to reflect the changing Canadian reality, but rather that this cannot be done at the expense of the interests of the Quebec nation. Benoît Pelletier expressed this very idea, on May 17, 2007, with regard to Bill C-56 which, I will remind members, was the forerunner of Bill C-12, although the latter is even more reprehensible because four more seats are involved. I will thus read what he said when he was intergovernmental affairs minister in the Government of Quebec.

I appreciate that the House is based on proportional representation. But I wonder whether there might be special measures to protect Quebec, which represents the main linguistic minority in Canada, is a founding province of Canada and is losing demographic weight. Why could Quebec not be accommodated because of its status as a nation and a national minority within Canada?

It should be noted that Benoît Pelletier is not a sovereignist but a federalist. He clearly understood the essence of a true confederation.

I would also like to remind members that in 1840, when the United Province of Canada was founded, the population of Lower Canada was much larger than that of Upper Canada. At that time, there was more talk about the French-Canadian nation than about the Quebec nation. The political leaders of the French-Canadian nation made the argument with French Canadians, with the population of Lower Canada, for an equal division of seats between Upper Canada and Lower Canada in the central legislature at that time. From the beginning, it was understood that political arrangements were needed to ensure that the two nations could talk to one another as equals.

The spirit that existed in 1840 should have guided us in 2010. Unfortunately, we are forced to acknowledge that we have lost that spirit because the sense of confederation no longer exists. We have a government that is increasingly centralist and, in reality, this is a confederation in name only. It is a political system where the central government, the federal government, has more and more powers, especially because of its pseudo-spending power in provincial areas of jurisdiction.

In this regard, I would like to remind the members of the House that this winter, during this session, the Bloc Québécois introduced a motion to eliminate the federal spending power in areas under the jurisdiction of the provinces and Quebec. The Prime Minister promised that this would be done and the hon. member for Beauce suggested that this action be taken several days before we introduced the motion. Unfortunately, all the Canadian federalist parties opposed the motion. This is yet another sign that the existence of a Quebec nation is not actually recognized.

This lack of recognition is particularly true on the part of the Conservatives, as we later saw. The Conservatives recognized the Quebec nation for opportunistic electoral reasons. They were trying to show Quebeckers that they were more open-minded than Jean Chrétien's Liberal government. However, this recognition and open-mindedness was merely a symbolic gesture—like a rose in someone's lapel—with no concrete meaning.

We have seen other examples of the government's refusal to eliminate the federal spending power. I remind the members of the House that I myself introduced a bill to apply the Charter of the French Language to companies under federal jurisdiction in Quebec, companies such as banks, interprovincial and international shipping companies, and broadcasting and telecommunications companies. We proposed this bill so that the 225,000 workers in Quebec who are not currently protected by the Charter of the French Language could be. With the exception of the NDP members, who were divided on the issue, all of the Canadian federalist parties opposed the bill. This just goes to show the lack of recognition of the Quebec nation and its common language and one official language, French. Once again, the parties wanted to perpetuate the myth of bilingualism when we know full well that, in the rest of Canada, the French-Canadian minority is, unfortunately, gradually being assimilated, despite the laws that, in theory, are supposed to protect francophones.

This is also quite obvious when it comes to the national culture of Quebec and Quebeckers. The Minister of Canadian Heritage and Official Languages once again introduced Bill C-32, which has been denounced by all creators, artists and singers in Quebec. This government has shown nothing but complete indifference. I must say, Quebec is not the only place that abhors Bill C-32. Many Canadian artists are also denouncing it, but Quebec's voice has been much louder than that of anglophone artists in Canada. So, once again, a direct attack is being launched on Quebec culture. This is another example of the failure to give tangible expression to the recognition of the Quebec nation. Very clearly, the bill before us is meant to favour the major broadcasters and the major Canadian and American producers, to the detriment of artists' copyrights.

Once again, this all proves that tangible expression will never be given to the recognition of the Quebec nation—not under the Conservatives nor under any federalist party.

If the government had really taken the Quebec nation into account, it would never have introduced Bill C-12. Something else would have been arranged, like what was agreed upon in Charlottetown, that is, 25% Quebec representation in federal institutions.

The old Constitution, the 1867 Constitution, contained provisions whereby the French-Canadian nation, which was based in the Lower St. Lawrence region and in Lower Canada as a whole, had accepted that the English-Canadian nation should have equal representation. Things have changed since then.

French-Canadians who live within Quebec's borders now identify themselves as Quebeckers. Everyone who lives in Quebec considers themselves part of the Quebec nation. People no longer talk about a nation based on ethnicity. The same is true of the Canadian nation. It is not a nation made up of English-Canadians or people only of British, Scottish or Irish origin. Now everyone agrees that people who live in Quebec, those who are permanent residents, who have citizenship, regardless of their place of birth, their religion or their mother tongue, are Canadians or Quebeckers.

We also have to recognize that in that context, Quebec remains the heart of the Francophonie, not just in the Canadian body politic, but in all of North America and even the Americas. Except for Haiti, Martinique and Guadeloupe, where French is spoken, the only place where French is the primary language is Quebec.

We have to take this reality into account in order to make the political voice of Quebec heard in the House. Mr. Gérin-Lajoie made the same arguments when he was education minister in the early 1960s under the Liberal government of Jean Lesage in Quebec, during the quiet revolution. He said that Quebec's domestic jurisdictions should be extended to the world stage. He was particularly interested in the issue of education. He said that since Quebec was responsible for education, which is central to the development of a nation and its culture, then Quebec should be heard with its own voice on issues of education and culture in international institutions. Unfortunately, that did not happen. Let us not forget that at UNESCO, we were offered a small ejection seat. If there is no agreement within the Canadian delegation between the representatives from Quebec and those from Canada, then Quebec has to keep mum, and Canada gets to speak on behalf of Quebec even if their positions differ.

This bill is insulting to us. It has to be withdrawn and I will amend it in the following way: I move, seconded by the hon. member for Laval, that the motion be amended by deleting all the words after the word “That” and substituting the following:

the House decline to give second reading to Bill C-12, An Act to amend the Constitution Act, 1867 (Democratic representation), because the bill would unacceptably reduce the political weight of the Quebec nation in the House of Commons and does not set out that Quebec must hold 25 percent of the seats in the House of Commons.

I am moving this amendment.

Economic Negotiations with the European Union

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

Mr. Chair, unfortunately, the NDP member who just spoke is right. I said “unfortunately” because, to this point, the Conservatives have given no indication that they like the arts, culture and artists.

On November 30, 120 of the most famous, symbolic and legendary Quebec artists came to meet with Conservative members on Parliament Hill. Luc Plamondon, Robert Charlebois, Michel Rivard, Ariane Moffatt, Louise Forestier and the members of Mes aïeux and Cowboys fringants were there. Who met with them? Not one Conservative member met with them. Zero, net, none.

These are some of our most legendary artists. Usually, someone who likes artists will meet with them, especially when they are generous enough to travel to attend a meeting. They all spoke to us; we were at the same table. We went from table to table and they talked about themselves. Meeting so many great Quebec artists, many of whom are stars on the international stage, was truly an extraordinary experience.

They spoke against Bill C-32, which runs counter to artists' interests. We cannot understand why the Minister of Canadian Heritage and Official Languages defends industry at the expense of artists, and takes away $74 million in revenue per year. That makes absolutely no sense.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I just have one question for Mr. Brown.

You said the following in your opening statement:

About 85% of Access Copyright's current revenues...is at risk if “fair dealing for education” is incorporated into Bill C-32. So, I stand to lose up to 85% of my income from Access Copyright.

Now, 85% is a very specific number.

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

Thank you very much.

Are there any parts of Bill C-32, on copyright, that you like?

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

Thank you very much Mr. Chairman.

My question is for Mr. Brown. If Bill C-32 is passed, you say that you will lose 85% of your income. On the other hand, the representatives from the Canadian Teachers' Federation beside you say that they don't want to pay less. What exactly they do want is not easy to understand. They say that they want to pay copyright fees and that income won't go down. In that case, how do you explain the 85% reduction? I still don't understand their position.

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

Well, they're restrictive depending on your point of view. You have to pay for certain materials.

With Bill C-32 there is the proposed exemption of education, which I understand you favour.

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

I'm still not quite there, though, in terms of understanding it. You can make things very clear--things are very clear at the moment--without Bill C-32. They're clear.

But as I understand it--

[Dean Del Mastro, Conservative, Peterborough, ON]

It's against the law now and it will be against the law once Bill C-32 is passed. I just want to make that clear.

I want to move on to some of the exciting things that I think Bill C-32 will do. I see Bill C-32 as allowing education to really roll into the classroom some of the latest technology. Can you talk a little about how teachers are using electronic boards and so forth, and how this can be brought in to really bring the educational experience for our students up to date?

[Dean Del Mastro, Conservative, Peterborough, ON]

Okay, thank you.

Do you see anything changing, moving forward? Can you imagine a time, moving forward, upon the passage of Bill C-32, with education as an included item under fair dealing, when school boards would encourage teachers to make copies of entire works and assume that this would be fair dealing?

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

Mr. Brown, I would like to hear your comments on the fact that if Bill C-32 were adopted as it stands, you would suffer an 85% loss in your income from Access Copyright.

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

Yes, however there are already websites that indicate that their documents can be used. Are you not satisfied with that? Under Bill C-32, even the logo, that famous copyright C, will not be respected. It seems to me that if one respects copyright, then one must even respect that when the document in question is on the Internet, students should be directed to websites that contain documents that can be copied. They must not be taught that just because a document is on the Internet it's free and that intellectual property doesn't belong to anyone.

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

You're still requesting that the legislation be changed to include education under Bill C-32. Earlier I heard you refer to Internet documents for example. Copyright fees apply to Internet documents as well. You know, we have to teach youth that authors have rights and that intellectual property, whether it be in the shape of a written paper, a photocopy, or an Internet document or a projection on the wall, is subject to copyright fees. Intellectual property belongs to the content creator and it has to be respected and paid for.

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

If Bill C-32 is passed, will you continue to pay it?

[Mary-Lou Donnelly, President, Canadian Teachers' Federation]

Thank you very much.

I certainly appreciate the opportunity to appear before this committee. I have with me today my colleague John Staple, who is the deputy general secretary of the Canadian Teachers' Federation. Together he and I will be addressing the questions, hopefully.

The federation is the national voice for teachers in Canada on education and related social issues. We represent upwards of 200,000 teachers through 16 provincial and territorial teacher organizations across the country.

Our brief to the committee we hope puts the views of Canadian teachers on elements of Bill C-32 clearly in perspective. As indicated in the introduction section, we have struggled with issues related to the balance that we believe needs to be struck between the rights of creators and the need of access by students and teachers to educational material.

Our own policy reflects the fact that we have been attempting to address that balance. We've been following attempts to amend the Copyright Act for many years. We and our partners in Canada's education community have been consistent in our approach on what is important for education over that time.

CTF supports Bill C-32 because it is a fair and balanced approach for education. Two key sections are of great importance to us. They are the education or Internet amendments, depending on your choice of words, which is proposed section 30.04, and the addition of education to the list of purposes for which fair dealing is available, proposed section 29.

The Internet amendment is important because the current copyright law is not clear about the extent to which teachers, students, and other educational users can legally engage in routine classroom activities such as downloading, saving, or sharing text, images, or videos that are publicly available on the Internet.

The amendment contained in proposed section 30.04 deals only with publicly available material. That is material posted on the Internet by the copyright owner without password protection or other technical restrictions on access or use. Most of this material is posted with the intention that it be copied and shared by members of the public. It is publicly available for anyone who wants to use it.

The problem is that current copyright law may not protect schools, teachers, and students when they are making routine educational uses of this publicly available material. Educational institutions and the teachers, students, and staff who work in them use the Internet in unique ways that may infringe copyright, even though many individual uses of the same material might be allowed under the Copyright Act.

Examples of the kind of educational use that is surrounded by legal uncertainty include making multiple copies of a work such as a photograph or an article found on the Internet for all students in a class; playing an online video for students in a classroom; and posting an item from the Internet on a class website. We welcome and support proposed section 30.04, and know that it will provide legal clarity about the use of publicly available Internet material for educational purposes.

The notion of adding additional purposes to the fair dealing provision has been discussed in the copyright reform process as a balanced method of providing access to works without harming copyright owners, because the dealing must meet a fairness test for the provision to apply. CTF supports the amendment to add education to the list, but believes, at the same time, that it does not go far enough. That is why our brief indicates strong support for the passage of the amendment adding education to the list of fair dealing purposes, and suggests a further amendment clarifying that making multiple copies for a class of students is fair dealing.

Two other issues referenced in our brief impact on the access to learning materials. They are the requirements to destroy course material 30 days after final examinations and the amendments respecting technological measures. We would support an amendment that deletes the requirement to destroy online course material 30 days after the final course evaluations, and we would support an amendment to proposed section 41 that would permit users to circumvent technological protection measures in situations where the use of the material would not be an infringement of copyright.

Thank you. We look forward to your questions.

[Douglas Arthur Brown, As an Individual]

Thank you for this opportunity to testify before you today.

I am a full-time professional writer from Cape Breton, Nova Scotia.

In Canada, creators of intellectual property number over 140,000. A quarter of us live in rural or small communities--about 36,000, the same number of artists who live in Toronto and Montreal combined. In all, Canada's $46-billion arts and cultural industry employs more than 600,000 Canadians.

A professional book writer usually earns about 10% of the cover price of a book. The remaining 90% is disbursed to others who work in the book publishing industry. Most professional writers in Canada earn less than $20,000 annually from their writing.

I am here before you today to put a face behind some of these statistics.

Some of my income is derived from royalties on book sales, but as time passes, interest in a published work diminishes. Writers also depend upon book launches, festival readings, and school workshops. However, that market is rapidly diminishing. A school board in the district where I live has been asked to cut back 22% of their budget. The first cuts will be music and arts teachers, and of course visiting writers.

Writers can and do apply for Canada Council grants and other grants, but demand always outweighs availability. As writers usually spend between two to four years working on a new book, these grants, if awarded, only go so far.

I also depend upon revenue from Access Copyright, a collective agency that issues licences to authorize the copying of my copyright material. About 85% of Access Copyright's current revenues, what it collects from educational institutions, is at risk if fair dealing for education is incorporated into Bill C-32. So I stand to lose up to 85% of my income from Access Copyright.

Former industry minister John Manley told you last week to have a look at the new education provisions “in five years' time, to see if some of these extreme expectations...have come true, but in the meantime come down, in balance, on the side of education”.

Actually, in the meantime, teachers across Canada will be encouraged by this new fair dealing exception to freely copy big chunks from a book of mine, maybe even a chapter or more, for an entire class without paying Access Copyright--and, through them, me. The collective that represents me and other artists will be forced to cut back drastically and will be less able to represent us effectively. More copying will hurt book sales, as well. With all due respect to Mr. Manley, five years is too long for us to wait while we're being decimated.

In ten years I've had five books published, and for six of those years I've published a literary magazine. The more than a quarter-million dollars of revenue generated by these publications generated tax dollars and infused money into the local community of Cape Breton, benefiting publishers, printers, designers, graphic artists, illustrators, distributors, writers, advertisers, photographers, and booksellers. At a time when rural communities across Canada are experiencing out-migration, my cultural and entrepreneurial contribution has been positive for the economy. And I am only one creator.

Fair dealing for education is not defined in this bill. As other witnesses have mentioned, a Supreme Court ruling lays out a six-part framework for deciding what might be fair. The courts are entitled to consider other factors as well, but the question is to be decided on a case-by-case basis, and protection of an author's financial interest in the work he has created is not a priority in that framework. No one at this point really knows what fair dealing for the purpose of education really means--except more copying without compensation to creators, and more costly lawsuits.

An advantage of living rurally is that one gets to know many of the people who operate local businesses. Several years ago, a local photocopying shop called me because an educator had arrived at the store and wanted to photocopy 100 copies of a children's book that I had written. When told that she couldn't copy the entire book or make so many copies without being in violation of copyright, her response was, “I'll never read another thing he writes. Who does he think he is--Harry Potter?”

Now, what disturbs me is not that the teacher in question didn't realize that Harry Potter was a fictional character, but that she assumed that stealing from me would not matter. Adding education to fair use is an invitation to much more abuse and to protracted legal battles. The practical outcome will be far more copying by teachers, and fewer publishers and writers producing much less material for Canadian readers and Canadian schools. You'll be making my life's work much more difficult to sustain. Please drop the fair dealing exception for education.

Thank you. Merci.

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

Good afternoon, everyone.

We will call to order this eighth meeting of the special legislative committee on Bill C-32.

We have one hour to hear from our witnesses today, and we have two groups of witnesses: as an individual, Douglas Arthur Brown; and from the Canadian Teachers' Federation, Mary-Lou Donnelly and John Staple.

For five minutes, Mr. Brown, you have the floor.

Artists in Ottawa

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

Mr. Speaker, on November 30, more than 100 artists from Quebec converged on Ottawa to condemn Bill C-32 on copyright. The expedition inspired internationally renowned lyricist Luc Plamondon, who was part of the protest. Here is an excerpt from his poem, which appeared in the media on Saturday:

We had a great trip to Ottawa-land
Hand in hand, heart in hand
The whole family was there, great and small
And I felt like the father of them all!
...
My God, it was swell!
In Parliament's halls
Our shouts shook the walls
'Til the fire alarm rang
And we cleared out again
How irate was our gang!
The Conservative cabal—
Moore and Harper et al—
Did not think to greet us
Or deign to talk to us
Or even to look at us
They answered with sneering
Our copyright querying
Taking industry's side
While claiming to protect the little guy
...
And that
Was our great trip to Canada!

That was by Luc Plamondon.

Remarks Attributed to Member for Ottawa South

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

Mr. Speaker, when I asked the member to retract the statement the other day, it was clearly heard by a number of members on our side and I found the comments regrettable. That is why I gave the member the opportunity to withdraw them. It seems to me the former deputy prime minister has in fact taken a very high level, non-partisan position on Bill C-32, one that I think is important. He is joining a long list of leaders in this country who are calling for an update to Canada's Copyright Act to enable employers, to enable investment, to create jobs in this country. I thought the statements he made were outstanding. I found that the comments made by the current member for Ottawa South should be retracted.

Copyright

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

Mr. Speaker, I thank the member for Kitchener—Waterloo for all his hard work on this file, and he is right.

The former Liberal deputy prime minister and member for Ottawa South, John Manley, appeared at our committee and his message was clear when he said, “I strongly endorse Bill C-32. It brings Canada's copyright rules into the 21st century”. He said, “It gives creators a tool to control how their works are made available. The bill is needed to ensure that Canada does not become a haven for piracy”.

I hope the current member for Ottawa South realizes how much the former member knows about copyright and how much this bill could help creators in Canada.

[Dr. Michael Geist]

I'd be very happy to provide you with copies.

Actually, your colleague, Mr. Lake, asked me specifically about this book when I appeared for Bill C-32. I'm happy to make copies of the book available, but I should note that it's actually available under creative commons licence by the publisher, so all articles are free to download.

[Dr. Michael Geist]

Former industry minister John Manley appeared before the Bill C-32 committee yesterday, and I believe that in talking about the bill, he said, “The perfect is the enemy of the good”.

I think that applies here. The notion that we have to jump from zero to 300,000 on day one and find a way to ensure that every single piece is translated is going to ensure it never happens. There is an awful lot of documentation and a lot of data already translated, so when I talk about all this crown copyright material as an example, this stuff is made available and is already translated.

As was rightly noted, there are many sorts of data sets, especially when we're largely dealing with just numbers. The ability to translate some of that stuff in relatively short order--stuff produced out of StatsCan, produced out of some other government departments--I would have thought would be fairly straightforward. Will other data sets that are more text-based present a challenge? Absolutely.

If it were me, at that point I would suggest that we go for the low-hanging fruit and make available just about everything we can, recognizing that this is going to be an issue for a lot of other stuff. When we get to that point, or even before, we start having the discussion about whether it is a requirement that everything be translated or whether we can adopt an approach of translating these things on demand. In this way, if a Canadian citizen or a certain number of Canadian citizens make a formal request that the document be available in English or French or in whatever language it isn't available, there is an undertaking to ensure that it is made available in that language, but we don't start from the position that everything has to be made accessible before it can even be released.

[Dr. Michael Geist]

Where I quote something on my blog or in an article, I'm often going to rely on an exception within the Copyright Act. Fair dealing would give me the right to use works, whether government documents or otherwise, for research purposes, criticism purposes, news reviews, or whatever it happens to be. There are five categories. Bill C-32 proposes to expand that in a number of directions. That's relying on an exception, though.

The rights that the government has with respect to its own information are the same rights that any other rights holder has, which are absolute rights. It can happen that the use of a government work falls within one of the exceptions. That's why you'll see sections of a report quoted in the newspaper. They have a news reporting exception that they can rely upon within fair dealing. They rely upon that with government documents in the same way that they'd rely upon it with anything else.

Once you move beyond that, as I said at the Bill C-32committee, it's fair dealing. It's not free dealing. It's not a matter of anything goes. When you go through a fair dealing analysis, you go through a full analysis about how much you're using, and the like. The same would be true for government documents. There are restrictions that someone might face in trying to use a government document.

Take a textbook that's a compilation of various materials. I had this for my Internet law text. We were looking to use a number of different reports from the government over time. Many publishers take a fairly conservative, risk-averse view, and we went to the government first for permission. That would be true for many publishers today.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you very much.

My next two questions are also for Mr. Geist. At a committee meeting last week, I asked a question about official languages. You gave examples of open governments in Australia and the United Kingdom.

Do you think Canada has more hurdles to overcome because of its duty to respect two official languages, which is not the case in Australia or the United Kingdom, where they have just one language? Could that lead to additional hurdles when it comes to implementing an open government approach? What would those hurdles be, in your opinion?

You also talked about Bill C-32 and copyrights, and what is happening with that. Researchers will provide documents to the government, but I would like some clarification on that.

What copyrights should be respected? I would like you to elaborate on that. Earlier, you said that the government could assume those rights. Do you think the work of researchers should be covered by those rights?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

If that's meant to be sarcastic and rhetorical, I appreciate that's the world I think in, and that's fine, but yes, we do think it's important to this committee. Mr. Del Mastro stood in the House today and said he'd give all the material on Bill C-32 to the committee studying it. We're studying an important bill that you want passed; we want to know the answers to all these questions.

I won't ask for the answers to these questions. I'll ask if you see any trouble in answering questions one, two, and three. Those are basically the nuts and bolts of it: who attended? When did these meetings occur? Could you provide us with the materials they saw? It's a very opportune time. If the department can amass all that stuff, we can all spend the Christmas break reading it and come back better informed to pass the bill that you want so diligently passed, but which you've been sitting on the round table results from for Conservatively two years, Liberally two and half years--NDP, I don't know.

[Dr. Michael Geist, Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual]

Thanks very much.

Good afternoon. My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and e-commerce law. By way of background, I serve on the Privacy Commissioner of Canada's expert advisory committee and on a number of boards, including the board of the Canadian Legal Information Institute, which is funded by Canadian law societies to provide free access to law. I'm also the editor of this new book on Canadian copyright and Bill C-32, which includes several contributions that address access to public sector information. There is some overlap between some of the issues that we see taking place there and some of the issues you're thinking about.

That said, I appear today before this committee in my personal capacity. I am representing only my own views.

I'd like to thank the committee for the invitation to come and speak and also for taking on the open government issue. At a time when the digital economy strategy is gaining increasing attention, it is crucial to recognize that the federal government has an important role to play in the digital content realm by ensuring that its own content or the content produced on its behalf is readily and often freely available in digital form. After years of closed, walled-garden approaches, the world, as we've just heard, is embracing the benefits of openness, and as you've just heard and we know, a growing number of Canadian cities have adopted openness policies that establish a preference for open standards, open-source software, and open government.

I believe that the federal government should follow their lead. We've seen other countries do it, and do it quickly. In the United States there were 47 data sets available to the public in May 2009. As we just heard, a year and half later there are 305,000 of those data sets available. In Australia the government launched the Government 2.0 Taskforce in June 2009. The task force completed its work in less than a year, and the government responded in May of this year. All of this took place in the span of less than a year. The U.K. launched data.gov.uk at the start of this year. Today there are more than 5,000 data sets freely available and more than 100 apps that use the data to provide information on fuel and housing prices, air quality, and government spending.

However, rather than focusing my comments on the impressive achievements elsewhere, I thought I'd concentrate in my opening remarks on what might be seen as low-hanging fruit, two easy, low-cost or no-cost initiatives that could jump-start open government in Canada: crown copyright and CAIRS.

We'll start with crown copyright. It dates back to the 1700s. Crown copyright reflects a centuries-old perspective that government ought to control the public's ability to use official documents. Today crown copyright extends to 50 years from creation and requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission. While permission is often granted, it's not automatic. To obtain permission, the author or publisher has to provide details on the intended use, the format of the work, the specific website it's going to appear on online, and an estimate of the number of hard copies to be printed. If it's going to be sold commercially, they have to disclose the estimated selling price.

The Canadian approach stands in sharp contrast to what we see in the United States, where their federal government does not hold copyright over work created by an office or an employee as part of a person's official duties. Government reports, court cases, and Congressional transcripts can therefore be freely used and published. The existence of crown copyright affects both print and audiovisual worlds, and is increasingly viewed as a barrier to Canadian filmmaking, political advocacy, and educational publishing.

Beyond just the pure policy reasons for abandoning crown copyright, there are financial reasons for reform as well. The federal crown copyright system costs taxpayers hundreds of thousands of dollars each year. According to documents that I obtained under access to information from Public Works and Government Services Canada, which administers the crown copyright system, in the 2006-07 fiscal year crown copyright licensing generated less than $7,000 in revenue, yet the system cost more than $200,000 to administer. In most instances, Canadians obtained little return for this investment.

About 95% of crown copyright requests are approved, with requests ranging from archival photos to copies, and this is true of the Copyright Act itself. More troubling were the 5% of cases in which permission was declined. While in some instances the refusals stemmed from the fact that the government didn't have the rights to the requested work, there was one instance in which an educational institution asked for permission to reproduce a photograph of a Snowbird airplane, but was denied on the grounds that the photo was to be used for an article raising questions about the safety of the program. Similarly, a request to reproduce a screen capture of the NEXUS cross-border program with the United States was declined because it was to be used in an article that wouldn't portray the program in a favourable light.

The ability to wield crown copyright has also arisen with respect to actual takedown notices. For example, just last year the Auditor General sent takedown demands to The Globe and Mail and Scribd, an online publishing site, after the newspaper posted one chapter from one of her reports. The office argued that crown copyright applies and that a written request for permission on a case-by-case basis is required.

Leaving aside the fact that this is arguably fair dealing--it's news reporting and consists of just one chapter in a larger report--the notion that Canadians need advance permission to reproduce or post a portion of a government report, I think, runs counter to the Auditor General's own efforts at government transparency and efficiency.

Similar issues can also arise in the context of video, possibly with respect to these very proceedings. In the spring of 2007, Friends of Canadian Broadcasting, the well-known broadcasting advocacy group, began to post videos and podcasts of parliamentary committee proceedings on their website. When officials at the House of Commons caught wind of the activities, they sent a cease and desist letter demanding that the videos and podcasts be removed from the Internet. A lawyer from the House of Commons argued that posting excerpts from committee proceedings such as these could be treated as contempt of Parliament.

In an ideal world, this would be an issue that the Bill C-32 legislative committee would be addressing, since the abolition of crown copyright, as New Zealand has been proposing, would have been part of the copyright reform package. Since it isn't, I would argue that we ought to consider following the Australian model of leaving crown copyright in place but overlaying it with an open licensing approach. That would mean government would maintain copyright but would freely license the use of the work for reuse, with no need for further permission or compensation. Only attribution would be required.

Similar approaches have been adopted in the U.K., which has seen the development of an open government licence, while others have called for the creation of a crown commons licence. Whatever you call it, the approach would provide an efficient means of freeing up government works without the need for legislative change.

Second, I'd like to touch briefly on CAIRS and access to information. As this committee well knows, in 2008 the CAIRS database, which provided information on prior access to information requests, was discontinued. This committee passed a resolution calling for its reinstatement, and the Information Commissioner has done the same.

In 2009 I launched CAIRS.Info, a site that provides access to searchable PDF copies of the same information that was contained in the CAIRS database. I have sent requests to most government departments each quarter for a list of the most recent access to information requests. The resulting documents are then uploaded and can be searched by government department, date of request, or keyword. The site is still available, but it's now out of date. It has proven difficult to maintain, given the need for quarterly requests to dozens of government departments, followed by digitization and uploading of those materials.

I'd argue that the solution is obvious. Not only should we reinstate CAIRS, but we should also make the records from all access to information requests freely available online, in machine-readable format.

This follows the U.K. example. In October of this year, Minister for the Cabinet Office Francis Maude told a Conservative Party conference that their freedom of information act will be amended so that all data released must be in reusable and machine-readable format. The change in the U.K. will mean that freedom of information data will be, and I quote, “available to everyone and able to be exploited for social and commercial purposes”. I believe the closest we come to that in Canada right now is the Department of National Defence, which lists all completed access to information requests on its website and invites the public to request a copy informally at no cost. That's a start, but it's not as good as we can and should do.

In conclusion, this is by no means the full solution. Rather, it is a modest starting point. There's open data, open access to research, open source software initiatives, and many other possibilities. Like many others, I believe that our goal should be to maximize open government. In doing so, we reduce costs, unleash economic value, increase transparency, and generate greater public confidence in our democratic institutions. I look forward to your questions.

Question No. 614

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

Mr. Speaker, maybe I can provide some assistance to the conversation by way of additional background.

It seems that a number of the things the member is asking for were actually offered up on the first day of the special legislative committee on Bill C-32. He talked about consultations, wanted to know who was met with and said that he would like to see some of the information. I told him that there were consultations from one side of this country to the other. In fact, one was held in Peterborough where the media was actually in attendance and records were kept from that meeting. We would be happy to furnish all of that to the member. I offered that to him on the first day the committee met if he was interested in seeing it.

In addition to that, I told him that we had received 8,000 written submissions on Bill C-32 and that they would also be available if he wanted to read them.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Mr. Speaker, I am rising in response to the point of order raised yesterday by the Parliamentary Secretary to the Leader of the Government in the House of Commons concerning my order paper question about the copyright bill, Question 614.

Clearly, the parliamentary secretary made comments that are a bit difficult to understand, are of a more partisan nature and have little to do with the rules. He said that we ask long questions to cause delays and slow down the process. In fact, quite the opposite is true. What I really want is to get answers from the government.

This is what I wish for. I need answers.

And so I am asking for answers in this regard. A desire to delay the process was the furthest thing from our minds. On the contrary, it is very important to seek out answers and that is why we are asking a question.

The Parliamentary Secretary said that my question was not concise enough. I would like to know what is concise and what is not. The length of the question is directly proportional to the length and complexity of the bill. I hope that some of the members have read Bill C-32, which is 65 pages long. It is extremely long and complex. We need clarification in this regard.

The Minister of Canadian Heritage and the Minister of Industry told us that the bill was based on consultations held across Canada. I went across Canada. I met with people in all 10 provinces during round tables on copyright. I hope that I can do so in the territories as well. What I heard was not at all like what the government heard. It was completely different. The government is telling us that the bill is based on consultations. What I am saying is that I consulted people and I got very different information. Something is not right, and that is why I put questions on the order paper, questions that are extremely important. For example, I want to know who they consulted. What was the process? What was the outcome of that process? We are not getting those answers in the House or in committee. Once again, what we heard is very different from what they heard.

What is clear to me, and probably to you, Mr. Speaker, is that this question is relevant. It is fair and to the point. Once again, we are not getting answers in the House or in committee. This bill is far too important to just let it go as is. We need answers, so we are using the question on the order paper to get important answers.

I would like to look at this from the perspective of the Standing Orders and read an excerpt from House of Commons Procedure and Practice, which states that:

Aside from a 1965 Speaker’s statement indicating that some of these restrictions no longer applied, there is no definitive breakdown of which of these are still valid. Thus [and this is important] a very large measure of responsibility for ensuring the regularity of written questions fell to the Clerk.

I will end with the following:

Acting on the Speaker’s behalf, the Clerk has full authority to ensure that questions placed on the Notice Paper conform to the rules and practices of the House.

Clerks in the service of the Clerk of the House analyzed the question, revised it and allowed it. They did their job. I do not see why anyone would question the work of the clerks. Unlike the parliamentary secretary, I trust them and I believe that you too will reiterate your confidence in our clerks.

Copyright

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

Mr. Speaker, let me be clear again. We are against imposing a massive new tax on consumers. If that is the proposal of the Bloc Québécois, we will be against it. It is the proposal of the NDP and we are against it. It does not serve consumers and it does not serve creators to make it more expensive for Canadians to have the devices on which they can consume Canadian content. It is a bad idea and we are against it.

We are not against it because we do not understand what the opposition members are proposing. We are against it because we know exactly what they have in mind.

We are against increasing taxes on consumers. We are in favour of an intellectual property regime in our country that serves the best interests of creators and consumers, and in Bill C-32 we have that.

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

Mr. Speaker, the bar association specifically says that Bill C-32 does not respect these international treaties.

The Minister of Canadian Heritage and Official Languages is once again showing contempt for artists by saying that creators, “are not entitled to revenue, they are only entitled to not have their work stolen.”

Therein lies the problem. The minister refuses to understand that copyright is revenue. Will the minister reconsider? Will he listen to and hear the cultural community and fine tune his bill to ensure that creators are compensated?

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

Mr. Speaker, as I have said many times, Bill C-32 is fair and responsible. It reflects the recommendations made across the country when we conducted unprecedented consultations in order to draft a responsible bill that responds to the needs of consumers and creators alike.

To answer the hon. member's question specifically, as to the WIPO Internet treaties, yes, this bill will make Canada the number one country in the world in terms of protecting our creators from those who pirate and steal from creators. We will work with WIPO and protect all Canadians.

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

Mr. Speaker, it is not just creators who are denouncing the copyright bill. The Quebec bar says that Bill C-32 is nothing but a series of “piecemeal amendments without vision or overall consistency, clumsily adopting parts of foreign models that we know to be outdated.” The president of the Quebec bar is calling on the Minister of Canadian Heritage to go back to the drawing board because Bill C-32 does not respect Canada's international commitments.

Will the minister substantially amend his copyright bill, as Quebec and its bar are calling for?

[Paul Glover]

Yes, certainly that is one measure. That said, Internet use is skyrocketing at the moment. At the time, that was not one of the measures in the plan. So we have since realized that it is possible to improve our action plan in order to better meet all the challenges that tobacco poses.

We are addressing legal tobacco and contraband tobacco.

We realized, with the explosion of the Internet.... That's further supported by some of our national anti-drug strategies, where we have comprehensive approaches, with images in movie theatres and posters, including television ads. We have an Internet site and a Facebook site, where youth are now posting their own stories and starting discussions. We have fans. We have different vehicles available to us than there were 10 years ago.

While we've certainly recognized that we were a leader 10 years ago, we're the first to get to this issue. We wanted to make sure we continued to be a world leader, as we were with Bill C-32, the first country to ban flavours in tobacco. Simply renewing health warning messages, which was world-leading 10 years ago, would not be world-leading today.

But more to the point, our objective is not to be world-leading; our objective is to be successful in helping Canadians quit smoking or stop smoking.

[Georges Azzaria]

I think that you have put your finger on another problem with this bill, which is sort of what we were discussing earlier. The technical protection measures are an obligation for Canada, in any case, because the WIPO treaties state that, one way or another, we have to have these technical protection measures.

So, the question doesn't really arise. Yes, we need technical protection measures. But which ones do we need and to what extent do we need them? That is the question that follows.

Under Bill C-32, we ultimately are dealing with two systems. On the one hand, there will be the authors working with it, and at the same time, there will be other people who won't be working with it. I'm not sure that is really the aim of technical protection measures. Initially, they were an additional barrier. One might even ask whether this is copyright. People will say it is, because the WIPO treaties say so, but it's as though there were two types of authors: the ones that work with technical protection measures and have a somewhat special regime, and the others, who have decided they don't and who work on the basis of another system.

I don't think the Copyright Act should support these two types of measures.

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

The fact is you are in another world—another bubble. Here everyone has noted that this bill is seriously imbalanced. The fact that the Canadian Council of Chief Executives is saying that it is balanced suggests to me that it really is seriously imbalanced.

I'd like to give you some information. What I would like, basically, is for you to go back to your chief executives and tell them that somebody has not given you the complete truth with respect to this bill.

I would like to present a different viewpoint.

In order to drive home the point that his bill was well accepted within the heritage community, the parliamentary secretary to the Minister of Canadian Heritage stated in the House that 38 multinationals, 400 businesses and 150 CEOs agreed with it. That is what he said.

When he was asked whether any artists agreed with it, he was only able to name one. He was so thrilled to have this support that he mentioned it twice in the House. Only one artist agreed with it, but as Dean Del Mastro stated in the House, there are 400 companies and 150 CEOs that do agree with it.

You also talked about laws that protect and reward the fruits of intellectual capital. I will give you some specific examples a little later. But this is anything but a balanced approach.

I also winced when you talked about extensive national consultations. I want you to know, Mr. Manley, that the consultations in Montreal, which is a large cultural capital, not a small one, were held on July 31, when half of the city had shut down and people were out of town. Furthermore, organizations as important as the Union des artistes du Québec had trouble getting invited and were forced to make their presentation in Quebec City. Talk about phony consultations.

Your friend, Mr. Pablo Rodriguez, objected to your saying that you are “aware that some Canadians are of the view that this bill goes too far in protecting the rights of creators”. But no one has ever said that, Mr. Manley; no one. I have never heard anyone say that this bill goes too far in protecting the rights of artists. I wanted you to know that.

According to you, the purpose of the copyright bill “has always been to strike a balance between the interests of creators and those of the general public”. Once again, allow me to correct you.

Historically, since Queen Anne of England back in 1710, copyright legislation has served to balance the rights of creators and disseminators. In the 18th century, this term included printers and publishers. Now it has a much broader meaning.

This bill has major flaws and will take money away from artists. First of all, the non-modernization of the private copying regime will remove an average of $13.8 million all across Canada. The education exemption, that young students were claiming earlier, will remove some $40 million annually. Write this down so that you can repeat it afterwards. This is money that is being taken out of their pockets. These are royalties that they receive as a result of their author's rights, and which they will no longer have. The abolition of ephemeral recordings will remove some $21 million in income. And artists are not the only ones saying this; broadcasters are of the same view. They said it would only cost them $21 million. There is also the YouTube exception, that the Entertainment Software Association talked about earlier, where preset damages are capped at $20,000. A musical work will never be worth more than $20,000. And I could give you other similar examples.

As you said yourself, the lack of accountability for Internet service providers makes no sense. They must be held to account. There are no royalties for artists and a notice system that is probably ineffective since there are no fines. This bill is focussed on digital locks, which works perfectly for the software and gaming software industry, but is very poorly adapted to the music industry. And, again, there are no residual rights for visual artists.

In a letter dated October 14, your colleagues, representatives of the Barreau who are sitting right next to you, said this about the bill: “These are piecemeal amendments lacking in vision and overall consistency, and rehashing parts of foreign models that are already known to be out of date.” The three intellectuals seated to the left of you wrote that. That is so true that the Quebec National Assembly unanimously passed a motion against Bill C-32, asking for substantial amendments.

With that, I will give our witnesses from the Barreau du Québec a chance to speak. Of course, you will have an opportunity to respond to my comments.

[Georges Azzaria]

Well, there may be challenges. Last Monday, Ysolde Gendreau testified before the committee, and I believe that she explained at some length that the bill, as currently worded, would have trouble meeting the standard if it were subject to the three-tiered test, in particular. That means there would be challenges to trade organizations, either the WTO or another organization.

It is pretty clear to me that there is a cloud over Bill C-32.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

You didn't even receive an acknowledgement. Fine, thank you.

Briefly, as you see it, the content of Bill C-32 is not sufficient for us to be in a position to ratify international treaties. Did I get that right?

[John Manley, President and Chief Executive Officer, Canadian Council of Chief Executives]

Thank you very much, Mr. Chairman. It's nice to be back.

I will read a brief statement and then I will go into the questions.

The Canadian Council of Chief Executives, which I lead, has a long history of support for measures to strengthen Canada's economy and to promote innovation. A strong regime of intellectual property protection and copyright is fundamental to that overall mission. Laws that protect and reward the fruits of intellectual capital and artistic creativity are critical to maintaining a dynamic, innovative, and open economy.

By the same token, the society has an interest in ensuring that consumers and other users enjoy fair and reasonable access to copyrighted material. This can only be achieved through a balanced approach to copyright protection. For that reason, we are supportive of Bill C-32.

This legislation is, as you know, the product of extensive national consultations, round tables, town halls and submissions from thousands of individuals and organizations across Canada.

Throughout this process, care has been taken to respect the concerns, needs and legitimate rights of everyone who creates, markets, distributes or in any way makes use of copyrighted material.

I'm aware that some Canadians are of the view that this bill goes too far in protecting the rights of creators and copyright holders.

Similarly, there are people who feel this bill gives too much freedom to consumers and other users.

This divergence of views is inevitable. The challenge in copyright law has always been to strike a balance between the interests of creators and those of the general public.

To my mind, there are four key elements of Bill C-32. First, it brings Canada's copyright rules into the 21st century by legitimizing some activities that consumers in fact do every day. This includes recording television programs for later viewing, transferring digital content from one format to another, and making backup copies, provided the original material was acquired legally and the copying is for consumers' personal use.

Second, the bill gives creators and copyright owners stronger legal tools to control how their works are made available and to guard against copyright violation. As other witnesses have pointed out, these provisions are needed to ensure that Canada does not become a haven for international music, movie, and software piracy.

Third, the bill will improve the learning experience for Canadian students by providing educational institutions, as well as libraries and museums, with enhanced access to copyrighted material. It does this in part by expanding the concept of “fair dealing” in a way that recognizes the significant societal benefits of education.

This is consistent with the recommendations of the Competition Policy Review Panel, which in its 2008 report identified the use of the Internet for research and education as a cornerstone of Canada's ability to innovate and compete in a knowledge economy.

Fourth, Bill C-32 encourages the growth of Internet services in Canada by providing legal clarity for network service providers, web-hosting services and search engines.

Under the new rules, ISPs will be exempt from liability when they act strictly as intermediaries in the communication of copyrighted material.

At the same time, the bill includes new provisions targeting those who knowingly enable copyright violations.

On behalf of the Canadian Council of Chief Executives, I strongly endorse the overall thrust of this legislation.

Having said that, I think the committee may wish to consider certain technical changes to the bill so as to avoid unintended consequences. For example, important concerns have been raised with respect to the impact on Canada's software industry of the provisions dealing with encryption research, network security, reverse engineering, and copying for interoperability purposes.

In addition, some of the language dealing with user-generated content and copying for private purposes may be too broad, but I'll leave it to others to propose amendments that would address specific concerns while staying true to the spirit of the legislation.

Those issues aside, the bill generally strikes an appropriate balance among various stakeholder interests.

I note that Bill C-32 includes a mandated review of the Copyright Act by Parliament every five years. While it may not be possible to satisfy every demand of every group, this provision ensures that parliamentarians will have the tools to address unforeseen problems on the basis of experience. In that light, I urge you to move this bill forward as expeditiously as possible.

As others have noted, the Copyright Act was last revised when the Internet was in its infancy, and it badly needs updating to reflect the impact of new technologies on business practices and daily life.

Bill C-60, tabled in June 2005, and Bill C-61, tabled in June 2008, both died on the order paper after the dissolution of Parliament. If these hearings continue at the current pace, there just might be a danger that this bill, too, will die. That would not be in the interests of Canadian creators and it would not be in the interests of consumers.

Nor I suspect, would parliamentarians welcome the prospect of going back to the drawing board, with yet another round of consultations and hearings. Finally, I want to commend the committee for the work you are doing. I bear the scars of the last time Canada's copyright law was amended, and I am the first to admit that mediating among so many competing interests requires a great deal of care and effort.

I still bear some of the scars from that process.

Thank you very much, Mr. Chairman.

I'd be pleased to respond to questions.

[Georges Azzaria, Professor, Laval University, Barreau du Québec]

Mr. Chairman, my comments will deal mainly with the complexity of the legislation, and I'm available to answer your questions in that regard.

Our hope was that Bill C-32 would clarify the underlying principle of the act, and yet we are left with a far more complex piece of legislation that includes an increasing number of exceptions, as well as exceptions to exceptions, to the point where it becomes very difficult to make sense of anything under the circumstances. Everyone knows that a law that becomes obscure and increasingly convoluted may not be obeyed, in some cases, because people will not know exactly what the principle involved is.

Let me quickly give you a couple of examples. You can make a private copy of a work, but not if there is a lock. In some cases, you have to destroy the copy and, in other cases, the author will be compensated, but not always. This is something that the average person will have difficulty understanding. So, I think there is significant concern associated with that.

Let me quickly give you two further examples. What is the distinction in the legislation between educational purposes, and so on? We don't know. Also, what is meant by “non-commercial purposes” or “private purposes”, considering that there is already a reference to private study and private use?

So, it is all of that, and the courts will probably end up wondering what it all means, which implies that there will be litigation in order to clarify matters. The Supreme Court will be able to explain all of this 10 years from now. But I'm not sure that is a good thing for litigants.

[Marc Sauvé, Director, Research Services and Legislation, Barreau du Québec]

Mr. Chairman, ladies and gentlemen members of the committee, my name is Marc Sauvé and I am the director of Research Services and Legislation with the Barreau du Québec. For the Barreau's appearance before this noble assembly, I am accompanied by Mr. Georges Azzaria, a professor at Laval University, and Mr. Pierre-Emmanuel Moyse, who teaches at McGill University. They are experts in the field and you will be able to ask them any questions you may have.

The Barreau's position on Bill C-32 was expressed in a letter from the president of the Barreau du Quebec addressed to Ministers Tony Clement and James Moore on October

The Barreau is of the view that the debate should focus on the principles that should apply to all legislation. However, the Barreau cannot claim that there is a consensus in the legal community regarding its position on Bill C-32, for two reasons. The first of these is the wide diversity of interests at stake, as well as the lack of a common, shared vision of what a copyright act should be.

If I may, I would like to focus on two points: the excessive complexity of the legislation, which encourages referral to the courts, and the bill's inconsistency with international law.

To address the first point, I would like to turn it over to Professor Moyse.

[Carolyn Wood, Executive Director, Association of Canadian Publishers]

Thank you for this opportunity to speak today on behalf of the ACP. It represents 127 independent publishers from across the country. We have members in all provinces. They publish books in all genres: literary books, cookbooks, children's books, general interest books, scholarly works, and textbooks. They represent, by and large, small- to medium-sized companies, and I would have to say their emphasis is more on the small-sized than the medium-sized companies.

Though a few are affiliated with universities and other not-for-profit organizations, most are owner-operated businesses—independent, English language, and Canadian owned. The multinational publishers located in the greater Toronto area represent to our members the chief competition in the marketplace. We have no foreign-owned companies in our association, but we share some common ground with them on copyright, and particularly on Bill C-32.

For all publishers, copyright is the ground that we stand on or the roof over our head—you can pick your metaphor. It's the sole source of our revenue. Authors give us the right to make copies. We produce copies and sell them, and we sell the rights to other publishers to produce and make copies in other languages, other territories, and other formats. That's it. That's our business. We have no concert revenue. We have no spinoff merchandise. We carry no advertising in our pages.

The revenue that derives from copyright is the sole revenue for our members, so it's not unreasonable that we are pretty interested in this bill. We are really glad to see it come down the pike. We've waited a long time for it and we're glad to see a bill get to this point. We've watched others fall off the tracks over the years.

We do have a few concerns, and there are four in particular I want to talk to you about today.

The first step for us is the education exemption. It is, as written, so broad and so undefined as to create enormous uncertainty for our industry with respect to its markets and future prospects. I was interested to hear the students say that any uncertainties can be resolved in the courts. I don't think anybody thinks that this would generally be the best outcome.

For our members--small businesses--legal solutions to this kind of problem are the last thing we want to see and can afford. We can't afford expensive litigation, and we can't afford to lose the market share that is at risk while all this plays out. We are interested in seeing clear definitions of “education”, and of the context in which this exception would be applied.

We are also concerned about the reduced role for collective licensing we see in this bill. The model represented by Access Copyright and Copibec has worked effectively for a long time to produce, as a result of much trial and error and many arbitrated decisions, broad access to a huge range of copyright-protected materials in a convenient and affordable form. If you want to negotiate the price, that's a market decision. If public representatives choose to do away with a lawful business model, that's a political decision. And if that model has a long history of working well for many institutions and individuals, that's a counterproductive political decision.

Our third point was addressed in the previous session on the limits to statutory damages for non-commercial use. We too are struck by the difference between copying by individuals for private purposes and the much broader and much less well-defined term of “non-commercial use”.

Finally, the extension of provisions on interlibrary loans to digital works—those provisions that applied previously only to print—causes serious market problems particularly for university presses in Canada, which publish the majority of Canadian scholarly journals. A change like this will severely undermine that market and perhaps eradicate it.

The total of all this—one of many—is a disincentive toward the production of intellectual property. While I was interested to hear the students talk about how access to intellectual property is one of the cornerstones of an innovative economy, if there is no incentive to produce those materials, then an innovative economy is the last thing we're going to have.

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

Very good.

Do you believe that Bill C-32 strikes the right balance between the interests of students and the interests of creators?

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

Okay, interesting.

Bringing this now to Bill C-32, what elements of Bill C-32 help to advance this agenda?

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

Thank you very much, Mr. Chair.

Thank you to our presenters for being here this afternoon.

I'd like to start with a couple of questions for the Canadian Alliance of Student Associations.

Setting aside a discussion about BillC-32 specifically, in the context of a general discussion about copyright, how would you summarize or encapsulate the interests of students in a general discussion about copyright?

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

Right.

I'm running out of time here.

You mentioned earlier, Mr. Keys—I believe it was Mr. Keys, it might have been Mr. Dayler as well—the destruction after 30 days. This has been brought or introduced, from what I understand of my reading of the legislation, for the first time in Bill C-32. I think you suggested that it was somehow the position as a result of pressure or involvement by the publishers. I don't think that's the case.

Do you in fact want to clarify that comment?

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I"d almost like to let this go for the next 20 minutes and just let the two of you debate.

I do have a couple of things. I would like a clarification on where Mr. Garneau was going earlier regarding Access Copyright. It's my understanding that Canadian schools pay in excess of $20 million per year to Access Copyright, and Bill C-32 does not change that--I don't believe.

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

Ms. Parr, I would like to come back to what you said earlier about this bill being a compromise. I have to say that, unfortunately, it is not a compromise. This bill is heavily weighted in favour of an industry such as yours, entertainment software. I'm happy for you, because your industry is important. However, this bill is seriously imbalanced.

You are proposing five amendments. If these amendments do not pass, would you still be prepared to support Bill C-32? I guess you would be in favour of Bill C-32, even though the artistic and creative community is sharply critical, has denounced it and would never want it to pass.

One proof of that imbalance is the damages regime. You refer to that in the fifth amendment you are suggesting. The damages you refer to relate more to musical works.

This is about circumventing a tool which is extremely valuable for you, namely digital locks. Clause 48 talks about criminal sanctions amounting to $1 million.

A musical work is worth $20,000 in terms of damages, whereas circumvention of a digital lock, which is extremely valuable for the gaming software industry, costs $1 million and exposes someone guilty of such an offence to a five-year prison term. There are pre-set amounts for damages. That is a good thing, but they are capped at $20,000, which results in an imbalance.

So, that brings me to damages. I would like you to tell me whether I have this right. Does the $20,000 fine also apply to software that is copied?

[Danielle Parr, Executive Director, Entertainment Software Association of Canada]

Great. Thank you.

Good afternoon, and thank you for inviting me.

My name is Danielle Parr, and I'm the executive director of the Entertainment Software Association of Canada. With me today is Jason Kee, ESAC's director of policy and legal affairs.

Our association is the voice of the Canadian video and computer game industry, which employs 14,000 people in creative and cutting-edge jobs that are leading Canada's digital economy.

Video games make up the fastest-growing entertainment medium in the world, with some blockbuster titles rivalling Hollywood movies in sales and excitement. In 2009 Canada's video game industry accounted for more than $2 billion in retail sales of entertainment software and hardware, and contributed over $1.7 billion in direct economic activity to Canada's economy.

In our view, Bill C-32 proposes measures that will bring the Copyright Act in line with advances in technology and current international standards of intellectual property protection. Subject to certain technical changes we are very supportive of the bill, and we strongly urge the committee to pass it as soon as possible.

Piracy is a massive problem for the video game industry. It represents huge losses of revenues to game developers and publishers that depend on large, upfront sales to recoup the significant costs of game creation. Piracy ultimately leads to studio closures, lost jobs, or worse.

The bill will provide rights holders with the tools they urgently need to go after those who facilitate piracy, either by trafficking and circumvention devices or services, or by operating pirate websites. Further, by establishing clear rules it will provide much-needed certainty in a digital marketplace, permitting market forces to operate properly, and enabling creators and companies to choose for themselves the best way to make their own content available.

This will contribute to job creation; promote innovation; spur investment in the development of new digital products, services, distribution methods, and platforms; and support a diverse range of new and innovative business models that will, in turn, foster legitimate competition, more consumer choices, and lower prices.

Today we'd like to tell you about how copyright is central to the video game industry, and recommend specific technical changes intended to address loopholes and avoid unintended consequences. We've outlined these issues in more detail in our submission to the committee, so I'll just give you a brief overview.

When it comes to TPMs, the video game industry makes extensive use of technological protection measures in all aspects of its business in order to protect its works. We strongly support the provisions in the bill that will protect TPMs. However, we have concerns with some of the exceptions, and recommend narrowing and clarifying them.

TPMs not only help prevent piracy by allowing creators themselves to determine how their work can be used, and to be properly compensated for their work; TPMs also enable a wide variety of business models by enabling value-added features and facilitating new products, services, and distribution methods in a digital environment.

Let me break that down a little. The choice of whether or not a creator, artist, or company can use a TPM to protect a digital work is and should be the purview of creators. Consumers clearly have the right to avoid purchasing products or services that make use of TPMs if they wish, and it's incumbent on creators and companies to respond to consumer demand, or they'll suffer in the market.

Some companies, such as iTunes, have responded to demand for format shifting by offering TPM-free versions, while others have responded by providing a downloadable copy of the work with the packaged version, like many Blu-ray movies. However, there's no equivalent expectation that a video game purchased for a Nintendo Wii should be playable on a Xbox, and there's no consumer demand for format shifting.

The point is that each market is different, with its own specific rules and idiosyncrasies, and it's good public policy to support the widest possible range of markets and business models and let the consumer decide, rather than pick winners and impose a regime that may be beneficial for one sector over all others. Strong legal protection for TPMs accomplishes this by ensuring that the creator's choice to use a TPM is respected.

It's also important to understand that TPMs play an increasingly critical role in new and emerging platforms and distribution channels for content online. From new streaming radio and music services such as Spotify, to film and television services such as Hulu or Netflix, to gaming platforms such as PlayStation Network or Xbox LIVE, all of these services are supported by TPMs. They control access to the services, thus preventing piracy. They provide viable market-based revenue streams for creators, and enable value-added features, such as rental versus purchase. The video game industry also makes extensive use of TPMs to provide additional downloadable content for games to prevent cheating and to implement subscription services.

We're in the midst of a fundamental change in the way we consume content, and creators will increasingly use online platforms and other new innovative distribution models to deliver their content.

Strong anti-circumvention measures such as those contained in this bill are essential, not only to prevent piracy and allow creators to determine how their works will be exploited, but also to ensure the new platforms are secure and to maintain the integrity of the nascent digital marketplace.

However, we are concerned that certain exceptions to circumvention will be exploited by those who enable piracy by trafficking in circumvention devices and services in order to escape liability. Overly broad and vague exceptions will render the provisions virtually unusable. We recommend that those exceptions be narrowed to close this loophole.

Briefly I'd like to mention three other areas that are of concern for our industry.

With regard to enabling infringement, we applaud the new enabling infringement provision but we are concerned that as drafted it might not be effective. We recommend clarifying it to ensure services that are both designed or operated to enable infringement are captured and that rights holders can obtain the full range of legal remedies against enablers including statutory damages.

The second is the exception for user-generated content. Generally the video game industry takes a very permissive approach to UGC. However, the wording of the bill would essentially permit widespread appropriation of existing works. It essentially allows anyone to copy the designs, art assets, even programming code from a game, and release a copycat game, for free, on the Internet. This exception must be narrowed and additional factors added, such as the need for the new work to be transformative, to avoid these clearly unintended consequences.

Another issue of major concern is with regard to the statutory damage provisions. The new multi-tiered approach is clearly intended to limit damages payable by private individuals who infringe copyright for personal purposes, but it could create perverse incentives and have the unintended consequence of giving a free pass to large-scale pirates. We recommend that this unworkable distinction be eliminated and that instead the factors the courts must consider when determining the award be emphasized.

Thank you, and we look forward to your questions. Merci.

[Zachary Dayler, National Director, Canadian Alliance of Student Associations]

Thank you, Mr. Chair.

On behalf of our 26 post-secondary institutions across Canada, representing over 300,000 students, we'd like to thank you and the members of the committee for inviting CASA here today.

We come before you to bring your attention to the importance of creating education as a new category of fair dealing. The inclusion of education as fair dealing is viewed by our membership as one of the most important changes the Government of Canada can make through Bill C-32.

The importance of an education fair dealing right cannot be understated. Our neighbour universities and colleges in the Unites States are able to capitalize on their fair use education right to drive innovation, but the growing reality for Canadian post-secondary institutions is that they are being financially and legislatively left behind.

If this category is not created, students will be getting double-charged, sometimes triple-charged, for access to materials they've paid for through a variety of fees collected, whether they be through collective licensing, library, or tuition fees.

Licensing collectives, such as Access Copyright, are looking to expand their scope beyond photocopying, to include fees for digital copies of already purchased articles, quotations in PowerPoints, and even to colleagues sharing texts over mail.

Beyond that, the economic argument for a more liberal fair dealing regime is clear. Modern tech-heavy creative industries in the United States rely on fair use to find innovative ways to generate more wealth and income for their country. Studies point to the fact that this fair use economy amounts to 17% of the U.S. GPD, and education forms a significant proportion of that in direct contributions and training for future contributors.

If Canada seriously wants to be a 21st century leader in innovative sectors, the U.S. example shows liberalizing fair dealing must be a cornerstone. Simply, we must allow access for the sake of education or sit by and watch our competitors pass us by.

However, as it is currently drafted, the educational fair dealing right is not enshrined as a true right but as a secondary right that can be overwritten by a digital lock. Creating a balance in the bill is important, and digital locks have their role, but allowing them to override fair dealing undermines the very concept of fair dealing. If a work has a digital lock, a copyright holder can limit any use of it. And fair dealing means there can be no inherent limit of the purpose, if the purpose is just.

This is more restrictive than the copyright regime in the United States and goes beyond Canada's obligation under international treaties. If we are to take fair dealing seriously, it needs to be a true right and it needs to not be trumped by a digital lock.

There are also two further amendments to the bill that CASA is proposing. The first is an amendment requiring libraries to self-destruct articles they lend through interlibrary loans. Students have two options when taking on such an article: either print one copy of it on paper, or let them destruct five days after receipt.

This clause undermines the way modern study operates. The benefits to digital articles are immense. They can be carried everywhere, organized in new ways, volumes can be searched in seconds, and citations can be automated. By requiring students to physically print out these articles, the law would actively bring education research back into the 20th century, at a loss to all Canadians.

The second amendment requires professors and students to destroy their course materials 30 days after the end of the course. This is absurd. In the 21st century, students are taught to be information gatherers and synthesizers who can find the information that exists in the world and bring it together in a way that generates new and original knowledge.

Tests that were once closed-book in the 20th century are now open-book in the 21st. Requiring students to destroy the information they've built their skills on after the course is over is to force them to take an open-book test without the book, to build a house without their hammers, when they enter the workforce. It's needless and it doesn't impact the bottom line of rights holders.

Because students gained access to these lessons in an economically fair manner in the first place, if the cost of an education doesn't carry with it the ability to use that education in the workforce, I ask: what are students paying for?

Thank you, Mr. Chair.

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

Good afternoon, everyone.

I call to order this seventh meeting of the special legislative committee on Bill C-32.

Today we have two hours of witnesses. In the first hour we will have witnesses from the Canadian Alliance of Student Associations, Zachary Dayler and Spencer Keys; and from the Entertainment Software Association of Canada, Danielle Parr and Jason Kee.

For five minutes, from the Canadian Alliance of Student Associations, you have the floor.

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

Mr. Speaker, the government's primary responsibility with respect to copyright is to ensure that piracy is illegal here in Canada. That is what we are proposing with Bill C-32. On the one hand, we have an obligation to protect our creative communities, and on the other hand, we have an obligation to protect the interests of consumers. That is why we are saying no to a new tax on consumers, a new tax on iPods, a new tax that affects everyone: creators and consumers. Our Bill C-32 is responsible and fair and it meets the needs of all Canadians.

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

Mr. Speaker, copyright expert and president of the Association littéraire et artistique internationale, Ysolde Gendreau, told members of the legislative committee that Bill C-32 violates the international treaties signed by Canada. According to this leading academic, the bill introduces three exceptions that do not comply with the treaties: the education exemption, the YouTube exception and the reproduction for private purposes exception.

Does the Minister of Canadian Heritage and Official Languages understand that those are three more good reasons to significantly amend Bill C-32 so that creators are not only protected, but also compensated?

[Sylvie Boucher, Conservative, Beauport—Limoilou, QC]

So there could be negative consequences for creators and consumers if Bill C-32, An Act to amend the Copyright Act, were not passed? That's what you're saying?

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

Clearly, Bill C-32 strips artists of three major sources of compensation to which they long had access.

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

The minister told the CBC that Bill C-32 was not designed to compensate artists, but rather to protect their works so that they are not stolen. You're saying that the objective is to compensate artists.

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

I'm going to come back to the exemptions later, if I have the time.

With regard to the three-step test, the third particularly states: "no unreasonable prejudice to the legitimate interests of the authors" or copyright owners. Does that mean that the three elements that are not contained in Bill C-32 and that force artists to lose enormous annual revenues constitute undue hardship?

The first of the three steps is the non-modernization of private copying. This is an advantage, which artists currently have, that will cause them to lose $13.8 million a year. Then there is the education exemption, which will cause them to lose $40 million a year. There is another one, which we have not discussed today, and that is the exemption granted to broadcasters from paying fees for transitory copying: that's $21 million a year. In all, artists will lose $74 million a year as a result of this bill. Does that mean that this constitutes undue prejudice to authors' legitimate interests?

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

Bill C-32 does not comply with those international treaties, contrary to what the minister says, whereas you know that that is one of its main objects. It states that one of the main objects of Bill C-32 is to comply with international treaties. It also states that one of its main advantages is that it is renewable every five years. It's as though someone wanted to sell me a car and told me that that was good because I would be able to change it in four years. It's as attractive as that.

To go back to the international treaties, the minister says that the main reason for this bill is to comply with international treaties. You say that it doesn't comply with those treaties and that Canada could be brought before international bodies to explain itself.

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

Thank you very much.

Ms. Gendreau, I very much appreciated your presentation, particularly when you said: "Copyright is a partnership between authors and disseminators," and the word "disseminators" is used here in its broadest sense. Too often I hear the minister say that there should be a balance between artists and consumers instead. I've often heard that as well from the Conservatives. They say the same thing.

However, if we look at history and the Statute of Anne—Anne, Queen of England—we realize that this has always been a search for a balance between authors and disseminators in the broadest sense of that term. It is good to see the facts re-established.

Moreover, unless I'm mistaken, when you refer to the exemptions under Bill C-32 that do not meet the three-step test, you're saying that the bill is inconsistent with international treaties?

[Glen Bloom, Chair, Copyright Legislation Committee (Technical), Intellectual Property Institute of Canada]

Good afternoon. Bonjour. My name is Glen Bloom, and I'm a partner in the law firm of Osler, Hoskin & Harcourt. I appear today on behalf of the Intellectual Property Institute of Canada, IPIC.

It's a pleasure for me to be here today on behalf of IPIC. Thank you for inviting us.

IPIC is the association of intellectual property law professionals. Our membership totals over 1,700 individuals, consisting of practitioners in law firms and agencies of all sizes, corporations, government, and educational institutions. I am the chair of IPIC's copyright legislation technical committee and appear today in that capacity.

To explain the purpose of my presentation, I first need to give you some background about our committee.

The technical committee is composed of experts in copyright. We practise law in private practice, with the exception of Ms. Gendreau, a committee member who is an academic. We represent clients across the spectrum on all sides of the policy debates. The committee takes no position, however, on the policy decisions behind Bill C-32.

Members of our committee have extensive experience in the practice of copyright law and by virtue of that experience have a good understanding of how the Copyright Act works and how amendments could affect both rights holders and users. We therefore bring a different perspective to the specific language utilized in Bill C-32 from the government officials, who address policy choices, and the legislative drafters, who, although experts in drafting legislation, may not have expertise in copyright law and its application in practice.

Our committee has examined the technical issues arising from the amendment to the Copyright Act. By technical issues, I mean the actual wording of Bill C-32. Our goal is to assist the government to ensure that the wording of the bill achieves the government's policy intent and avoids unanticipated consequences. We make suggestions to clarify the proposed amendments to ensure the English and French language texts are aligned to achieve internal consistency in the Copyright Act and to point out possible consequences of proposed amendments, which may not have been intended.

We have prepared a detailed submission addressing technical issues in Bill C-32. A copy of the table of contents showing the breadth of our comments has been handed to you. IPIC will be forwarding the submission to government officials shortly. IPIC would be pleased to provide a copy of the submission to this parliamentary committee, if you wish.

I will provide you with two examples of our many technical comments.

First, subsection 13(2) of the Copyright Act currently provides special rules for the ownership of commissioned engravings, photographs, and portraits. Clause 7 of Bill C-32 repeals subsection 13(2). As a replacement for subsection 13(2), Bill C-32 will enact a new paragraph, proposed paragraph 32.2(1)(f). This new section will provide Canadians certain rights to the non-commercial use of commissioned photographs or portraits. There's no reference to engravings. Our committee questions whether this was an unintended omission and suggests that consideration be given to amending proposed paragraph 32.2(1)(f) to refer to “photographs, engravings, or portraits”.

The second example of our technical comments relates to treaty obligations. Our committee understands that the matter of the extent to which Bill C-32 implements the obligations established by the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty is considered to be a policy matter. However, this is not the case with respect to technological protection measures, or TPMs, which we understand are considered to be a technical matter. Consequently, the committee does not comment on treaty implementation, save in the context of TPMs. With respect to TPMs, we are of the view that Bill C-32 is compliant with the obligations in the WIPO treaties. We express no view as to whether a lower threshold of protection for TPMs or fewer legal remedies for the circumvention of TPMs would or would not also be compliant with the treaties.

You may ask why our committee wants to reduce the ambiguities of the legislation and therefore potential areas for litigation. IPIC and our committee strongly believe that in the area of copyright, as with other areas of intellectual property, everyone is better served by certainty. The less doubt there is regarding the scope and application of copyright, the better it is for creativity and for the dissemination and use of copyright works in Canada.

Thank you for listening to me.

I will now be pleased to answer your questions.

[Ysolde Gendreau, President, Association Littéraire et Artistique Internationale (ALAI Canada)]

Thank you very much, Mr. Chairman.

My name is Ysolde Gendreau. I am a professor at the Faculty of Law, University of Montreal. However, I'm here today as president of ALAI Canada, which is the Canadian branch of the International Literary and Artistic Association, a body that was founded in 1878 for the promotion of authors' rights.

I will continue my presentation in French.

Because the ALAI is at the origin of the Berne Convention, I have come here today to talk to you about Bill C-32's compliance with international law and especially with the requirements of international law with respect to exemptions. Before talking about the exemptions, perhaps we should talk about the basic principle. I would first like to submit that a copyright act, whether it concerns copyright or droit d'auteur, represents a partnership between authors and distributors. From the time the first copyright legislation came into existence 300 years ago, Parliament has intervened to inform the distributors of works—at the time, they were printers and book stores—that they had to take authors into account in the compensation they obtained from the sale of their books. The role of Parliament is to provide a framework for this partnership and its evolution as new distributors arise.

In a relatively recent example, in 1954, the Federal Court—at the time, it was called the Exchequer Court of Canada—held that the retransmission of works by cable did not give rise to the payment of copyright royalties. In 1988, 34 years later, Parliament intervened and required cable companies to pay royalties to authors. I would like to point out that that intervention occurred at the time of a trade agreement with the United States.

It is by developing this partnership between authors and disseminators as technology evolves that we foster the technological neutrality of copyright. Exemptions to copyright mark the limits of this partnership because, otherwise, there might be no end. This partnership entails exemptions—as you know, since you have previously heard about this—at the international level. These exemptions are sublimated in what is called the three-step test under the Berne Convention and TRIPS, two instruments to which Canada is bound, and also in the WIPO treaties. There are certain special cases: no conflict with normal exploitation, no unreasonable prejudice to the legitimate interests of the authors/copyright owners.

I would like to submit a few examples of this found in Bill C-32, which, in ALAI's view, undermines the three-step principle, because these exceptions are too broad, because they are based on unrealistic conditions that, once again, make them too broad. Here we're talking about fair dealing for the purpose of education, the new section 29. We're talking about non-commercial user-generated content, private copying under section 29.22. We can add, of course, fixing for later listening or viewing. We can add back-up copies that are not limited to software and applied to all works under section 29.24.

The three-step test is what indicates that copyright and copyright holders have limits. This three-step test is not just a statement of prohibition. It provides for a solution to settle the cases of exceptions that might not meet the three-step test.

Why does it contain in itself this seed of a solution? Because the three-step test was designed in the 1960s, at a time when photocopying was on the rise. Copyright thinkers at the time viewed the increase in photocopying as a rise in mass use and foresaw that technology would continue along that path. What do we see today? We are indeed facing mass use of all kinds of media. They also understood that the answer to these mass uses was collective management. We can come back to this later in response to certain questions that you may wish to ask. What the origin of collective management was, to explain that answer and the context of the exceptions, assists in adjusting collective management, mandatory licences and the determination of value.

International copyright law protects this partnership between authors and distributors. It imposes limits on it that must be respected.

I will be pleased to answer your questions.

Thank you.

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

To ensure that artists are properly compensated, shouldn't the focus be on ensuring that artists receive dollars and not pennies? And would you not agree it's important to ensure that the legal market for music, and the legitimate purchase of music, is bolstered and protected? In some European countries that have implemented legislation similar to Bill C-32, the legal market for music has been further supported and bolstered and protected. Are you familiar with those examples, and would you agree that's where the focus should be?

[Annie Morin]

I can tell you that, based on the last figures we've obtained, legal downloading has increased somewhat in a year. Before that, 90% of the content on an MP3 player consisted of unauthorized copies. For 2008-2009, we see that unauthorized reproductions represented 85%. So there has been a slight improvement.

That said, I don't see how Bill C-32 could improve the figures on music copies. Even if there are no further opportunities for illegal downloading, people will nevertheless copy music and pay nothing if the copying is done on a digital audio recorder.

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

Of course, some people say that, by attacking peer-to-peer file sharing sites, this bill will be useful in that it will reduce pirating.

Now you're saying that 90% of music that is listened to is music that people haven't paid for.

How far do you think this figure of 90% could fall if Bill C-32... Do you think people will find ways to circumvent the problem?

[Dean Del Mastro, Conservative, Peterborough, ON]

There's an important feature in Bill C-32, which is a technological protection measure, as Mr. Isaac mentioned. If you don't want people to make additional copies of your work, we actually say that we'll let the market work. And that's an important distinction....

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chairman, and my thanks to the witnesses for appearing today.

This is an interesting discussion. It seems to me that the role of copyright is to establish a market. It's to establish a system by which people who create things can be paid for their creations. It recognizes that when a work is created, it should be bought and not stolen.

I want to go back to some of the comments of my colleagues across the way, because it seems they're missing the purpose of the bill. I don't want people to copy your music for nothing; I don't. I want them to pay for it. When I was a kid...it's not that long ago; I guess I'm a few years younger than anybody on the opposition side. I had to buy 45s, I had to buy cassette tapes, and I had to buy CDs. In fact, I bought hundreds of CDs.

It seems we have a defeatist attitude on the other side now and some in the lobby, who say, “You'll never shut down isoHunt, and you'll never shut down these organizations.” It doesn't matter. Mr. Isaac says, close up the loopholes. I want to close the loopholes up. I want to shut them down, and I want you to get paid for every song you sell.

What I don't want to do is put in a system.... I need to understand this better. You said you'd only tax music devices. This phone is a music device. It's a phone, it's a computer, and, by the way, as technology improves, it's going to be even more seamless. The same device you use to open your garage door will be the device you use to change channels on your television--and it might well be your television. All these things are converging. Technology is converging. There will be no such thing--there is virtually no such thing today, as we sit here...if you go to the store shelves, unless you're buying very, very cheap devices, there is no such thing as strictly a music device for sale. The good devices are all converging. They do multiple things.

I have no idea how you would ever create a tax for this, and it is a tax. I also want to deal with this question of whether it's a tax or a levy. A government is only a conduit. In fact, right now government is a really good conduit, because it's paying out more money than it's taking in, some of which we're giving to artists, and I'm proud of that. But there is no difference to the consumer where the money winds up. None of the money ultimately goes to something called “government”; it all goes back to Canadians in different ways. So it is very much a tax.

I would like to understand how you would place it only on a device that only copies music. First of all, there is no such device. Secondly, I don't know how you could set it at $2, $10, or $15 and make up for the fact that what Bill C-32 seeks to do is shut down the BitTorrent sites. You must support this. Is that not the most important thing for artists, that people can't just steal their music?

[Roanie Levy]

Absolutely. I think you're correct to point out that, especially when you're dealing with a situation where remuneration is currently received by creators and by other rights holders, removing the remuneration would conflict with the normal exploitation of a work or would unreasonably prejudice legitimate interests of the rights holders. If you're familiar with our international obligation, you would recognize that these are two of the three-part steps that every exception needs to be met.

In Bill C-32 there is a surprising number of changes that outright eliminate remuneration that is currently being received. There are some in the education sector, there are some in the mechanical reproduction sector, and there are some in others as well.

It also goes to the ability of creators to be able to perceive future revenues. As the use is moved to a digital environment, the elimination of the licensing regimes and the undermining of collective society is going to have a serious impact on the ability of creators and rights holders to be able to actually benefit from the promise of the digital economy, which would otherwise allow them to receive compensation where the consumer is at, where the consumer is actually making uses.

When you think of the digital economy, you think of this seamless web of licences, licences that would be through collective society as well as directly with the rights holders, that would allow the uses to take place in a seamless way to the consumer, but where the creators and the rights holders would receive compensation. The elimination of these revenues today and the dismantling of collective societies generally, which Bill C-32 creates, would seriously undermine the innovation of these types of business models in the digital economy.

[Roanie Levy]

You're asking me a lot of things. I'm going to start by saying that defining the education sector would be helpful. However, that's definitely not the solution. Even defined in a more limited way than it is today, the education sector as such is still an important sector for creators and book publishers. So simply defining the education sector is not enough. It's also important to define certain limits to the concept of fairness.

I'm going to suggest something else that you might consider. The amendments in 1997 made it possible to introduce a very innovative mechanism in Canada. It's a mechanism that grants access to a work and payment for that work at the same time. Access is guaranteed, and payment as well.

Unfortunately, Bill C-32 disregards that mechanism, which is provided for under the current Copyright Act. Even worse, it is eliminated in a number of instances. If we once again followed the principle that, when the market is able to meet the rights holders' needs as well as those of the user, we no longer need to apply the rules of exemption, we would succeed in achieving the twofold objective of access and compensation.

[Roanie Levy]

Based on our study, we believe that about $60 million is at risk as a result of the scope of fair dealing in the education sector, as well as other education-related exemptions provided for in Bill C-32. This is revenue that COPIBEC and Access Copyright collects today for the copying of a chapter here, a page there, for the distribution of works in class, for the use of works in exams. It also includes the royalties that certain film distributors collect from the education sector.

So we're talking about a minimum of $60 million at risk, but you also have to consider that, when a use or reproduction becomes free of charge, an increase in that type of reproduction follows. There will also be a revenue shortfall that will be more difficult to quantify as a result of a decline in sales of texts intended for schools.

[Brian Isaac, Chair, Canadian Anti-Counterfeiting Network]

Thank you.

Good afternoon. I'm Brian Isaac. I'm the chair of the Canadian Anti-Counterfeiting Network, which we refer to as the CACN. I'm also a partner with Smart and Biggar, Canada's largest firm practising exclusively in intellectual property.

Thank you for the opportunity to present today. Due in part to the short time between our receipt of the invitation to participate and our participation, we have not yet submitted our written submissions, but plan to do so in the coming weeks.

The Canadian Anti-Counterfeiting Network is a national coalition of individuals, companies, firms, and associations, that have united in the fight against product counterfeiting and copyright piracy in Canada. We're going against IP crime. The members of CACN include Canadian organizations, companies, and practitioners who have hands-on experience enforcing against IP crime, including copyright piracy in Canada.

The issue of IP crime legislation has been studied for years in Canada. In 2007, the Standing Committee on Industry recognized that Canada's IP crime laws needed to be amended, and recommendations included ratifying the World Intellectual Property Organization Internet treaties that Canada signed in 1997.

While Bill C-32 does not address all the issues that need to be addressed relating to the problem of counterfeiting and piracy in Canada, and that includes addressing some other acts, such as the Trade-marks Act and customs legislation, it does address the Internet treaties and is an important step in addressing commercial-scale piracy in Canada.

Our submission is that passing Bill C-32 into law is a matter of urgency. Canada needs to take legislative action that is already way too long overdue, and while we're recommending some specific changes to address loopholes and practical enforcement issues, we do fully support passing of the bill as soon as possible.

Turning to substantive comments, first regarding the ISP safe harbours provisions, we remain concerned that the notice and notice system proposed in the bill will not be sufficient to effectively address the Internet trade in pirated products. In any event, a notice and notice system requires strong provisions directed against enablers of Internet piracy. The bill's proposed enabling infringement provision only applies if a service is “designed primarily” to enable infringement. With experience, I can say it's often going to be very difficult to prove a service was designed primarily for infringement, even when it would be possible to prove that a service provider is knowingly enabling and encouraging infringement as a primary use of the service.

Accordingly, our submission is that the enabling provision should be amended to catch services “designed or operated primarily” to enable acts of infringement. In addition, the provision should make it clear that the full range of legal remedies, including statutory damages, are available against enablers.

Second, we submit that the provisions providing protection for technological protective measures are crucial to fill a gaping hole in Canada's copyright laws. The prohibition on trafficking circumvention tools or services will permit rights holders and law enforcement to go after entities that are enabling widespread piracy. The nature of circumvention activities is such, however, that the act of enabling circumvention and the act of copyright infringement are normally distinct acts that are performed by different people. Accordingly, limiting the prohibition to circumvention for the purpose of infringement, in our submission, is not feasible as it's going to create a loophole for traffickers that will be exploited.

Further, the wording of the exceptions has to be closely scrutinized to try to ensure there are no unintended loopholes that may be used by persons trafficking in circumvention products and services. For instance, if you have purveyors of circumvention tools or services adapted for allowing the loading and using pirated content onto devices that are technologically protected, the fact that it may allow for the loading of legitimate content should not create a loophole when the economic viability of the tool or the service is solely based on enabling piracy.

Generally, we strongly urge against any watering down of the TPM provisions, as they may easily be rendered practicably unusable.

Third, and last, we're very concerned that the two-tier system for statutory damages will be abused and may create perverse incentives for rights holders and infringers. The new non-commercial tier provides a range between $100 and $5,000 that applies to all infringements ever done by the infringer, and that's going to give an incentive for them to copy as much as they can, because they'll only get one capped damage.

Also, the first rights holder to file an action can benefit from the ability to claim statutory damages. This could provide incentives for the rights holders to sue quickly so they're the first to the gate.

Moreover, many individuals and organizations that facilitate widespread piracy, such as “warez” or release groups, do so to build a reputation on the Internet. They don't do it for dollars. One of our concerns is that the two-tier system will benefit those people who are purposely going out to gain their reputations, and it would limit the liability of those individuals.

We recommend you eliminate the multi-tiered system and instead focus on the factors that courts must consider when determining the amounts of the awards, to ensure that individuals copying pirated content for private use are protected from inappropriate damage awards.

We urgently need to equip rights holders, law enforcement officials, and prosecutors with robust legal tools to shut down those who enable or facilitate piracy. We applaud the significant step the bill represents. We urge the committee to implement the amendments necessary to fully realize the principles of the bill and to rapidly pass and implement it.

I will gladly answer any questions.

Thank you.

[Roanie Levy, General Counsel and Director, Policy and External Affairs, Access Copyright]

Thank you, Mr. Chair, mesdames et messieurs, members of the committee.

I'll begin by explaining what Access Copyright does. In order to do so, I invite you to reflect for a second on just one image.

Here I have a copy of a page from a story by children's author, Alan Cumyn. All it is is words on paper: words and paper. In what does the value reside? Of course, the value resides in the organization of the thoughts and ideas on the page; that is, in the words. So when we photocopy, when we reproduce, when we display, or when we post it for others to use, we are reproducing the words, not the page or medium that merely conveys the words.

Access Copyright captures the value of these reproductions and redistributes it to creators and publishers who have invested their creativity, sweat, and capital to produce words on paper.

Reforms to the Copyright Act in 1988 and 1997 brought in collective societies like ours to manage parts of Canada's copyright regime. We have counterparts in every developed and many developing countries around the world.

Every year, Canada's education sector alone reproduces more than half a billion pages of text for use in classrooms. That's equivalent to three million books, books unsold, but whose words are valued enough to be copied. This is not about the child who copies a poem to memorize. This is about mass, industrial-scale copying of texts as educational resources. Mass copying that occurs one page at a time, one chapter at a time.

Across Canada, the education sector, and others, negotiate licences with Access Copyright for these very purposes. This ensures that rights owners are compensated when their works are copied instead of being purchased.

For centuries, this has been the purpose copyright has served: protect the value invested in the words and images that convey the ideas that drive our culture and civilization forward.

Perhaps it was unintended, but Bill C-32 turns this principle on its head. It does so with the introduction of a raft of new exceptions, exceptions that say users will continue to pay for the paper, the iPod, the iPad, but the words shall be theirs for free.

Today I'm going to walk you through provisions that demonstrate the true consequences of Bill C-32, that is, the stripping of revenues from Canada's creative industries and redistribution of them as subsidies to the education sector. That is done in the name of fairness. The word “fair”, like a fig leaf, appears to hide an embarrassing reality.

I have wrestled to understand the public policy rationale behind these changes.

I have wrestled to understand the public policy rationale in Bill C-32 for cutting off existing compensation from the education sector to creators and publishers for the use of copyright protected works in tests and exams, uses that are covered today under collective licences.

I have wrestled to understand the public policy rationale for cutting off existing compensation for the display in the classroom of copyright protected works, once again, uses that are covered today under collective licences. These are licences that generate a return on investment that keeps Canada's creators and publishers thriving as partners in the development of Canadian resources for Canadian students.

And I have wrestled to understand the public policy rationale for adding education to the so-called fair dealing exemption. Make no mistake, this is a misnomer: when dealing or use is considered fair dealing, it is not paid for. Fair dealing is free dealing.

Am I wrong or is this an unintended consequence of Bill C-32? Are the education exemptions a subsidy? Half a billion pages are paid for today. How many millions will be free tomorrow?

The government's background paper says this provision will “reduce administrative and financial costs”. As written, the exception is a hole through which many trucks will pass: everything will become education.

The Canadian Federation of Students understands that. They are cheering. The Council of Ministers of Education understands that. They, with the notable exception of the Quebec ministry of education, hope to bring us to the Supreme Court, because they believe that “most, if not all, photocopying in schools is fair dealing”.

“Fair” does not ensure that creators and publishers will be treated fairly. To me it looks like a fig leaf for expropriation without compensation.

You may have seen this. Four hundred of Canada's world-celebrated writers have signed this letter of protest, which was published a couple of days ago in The Globe and Mail.

If these consequences are unintended, please make it clear in the legislation. Fix it now and spare us decades in the courts.

I will be pleased to take your questions.

Thank you.

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

Good afternoon, everyone.

We're going to call this sixth meeting of the Legislative Committee on Bill C-32 to order.

Today we have, from Access Copyright, Roanie Levy, general counsel and director of policy and external affairs; from the Canadian Anti-Counterfeiting Network, Brian Isaac, the chair; and from the Canadian Private Copying Collective, Annie Morin, chair of the board, and Sophie Milman.

Could we hear from Ms. Levy from Access Copyright for five minutes?

Telecommunications

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

Mr. Speaker, the very thing the member is asking this government to do is in our copyright bill, Bill C-32. Unfortunately, his party is voting against Bill C-32.

Therefore, if he is asking our government to take an action in favour of the policy he has asked for, why does he not actually join us in doing what he says he should be doing?

Copyright

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

Mr. Speaker, our responsibility is to respect creators throughout Canada. The first thing we must do as a parliament is ensure that piracy is illegal in Canada. That is the first thing we must do.

Our Bill C-32 on copyright makes piracy illegal in Canada and also imposes international Internet treaties. That is key. It is the beginning of a real dialogue for our artists. It is a key component of our bill C-32 and, for that reason, we have strong support from artists, creators and everyone across Canada for an effective and responsible bill, one that does not slap a new tax on consumers.

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

Mr. Speaker, the minister did not answer my question. Does he agree with these three points? We all agree that piracy should be illegal. It is all in how you do it. Artists must be compensated.

The education sector currently pays $40 million a year to authors. Bill C-32 is cutting off this compensation. Royalties paid to artists are not gifts; they are their income, their pay.

Does the minister agree with the Quebec minister of culture that the education sector should set an example for our children by teaching them to respect our creators and their works and pay them?

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

Mr. Speaker, we are always talking with the other governments. I had a meeting with Ms. St-Pierre this week to discuss the bill. She supports the key elements of our bill. For example, our Bill C-32 will make piracy illegal in Canada and protect artists across Canada from what is destroying their ability to earn a good living with their creations. That is very important and a key part of Bill C-32.

Why is the Bloc Québécois opposed to a bill that makes piracy illegal in Canada? That is the real question.

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

Mr. Speaker, the Minister of Canadian Heritage says that he is working with Quebec minister Christine St-Pierre on improving Bill C-32 on copyright. Ms. St-Pierre believes that the education sector must pay copyright fees, private copying must be modernized, and Internet service providers must be made accountable. Passing Bill C-32 without these substantial amendments would result in enormous losses for Quebec creators.

Did the Minister of Canadian Heritage respond favourably to the minister's three concerns when he met with her?

[Prof. Giuseppina D'Agostino]

We do need to create a vital market framework, and with it we need the provisions to sing loud. We need clarity and understanding for all Canadians. Currently there needs to be some tweaking of the provisions outlined in Bill C-32 as it's configured, but we need to move forward.

[Prof. Michael Geist]

Sure.

The notion of free dealing is one that is foreign to our copyright law, and indeed it's foreign to most copyright laws that I'm aware of. It is the notion that someone has the unfettered right to copy without any sort of compensation. A rights holder can choose to make their work available in that fashion, but you wouldn't typically find that in a copyright law.

Our law is no different. What our fair-dealing provision provides, as I mentioned at the outset, is essentially a two-stage test. It first identifies the kinds of specific categories that may qualify as a potentially fair dealing. Other countries have done away with this altogether. For example, in the United States there are no categories at all. Anything can potentially be, in their terms, a fair use. In Canada you first actually have to qualify for one of those categories. The changes within Bill C-32 expand the categories by establishing that parody, satire, and education would be new categories, but, critically, there is a second step, and this would be true for the United States and would be true here as well.

That second step is a full fairness analysis to determine whether or not the copying itself actually is fair. It is a six-part test that the Supreme Court of Canada has identified to take a look at how much is being copied, what alternatives exist, and what the economic impact or the impact of the person who is engaged in those sorts of copying is. That's the test that's used. There's a similar test in the United States.

Now, no one would ever ague that because the United States has fair use with no categories, any copying of any sort is perfectly permissible in the U.S. There are clearly limits to fair use, limits that are based upon this test.

Precisely the same situation is true here in Canada, where there are limits established by the courts. You heard me suggest that if there are real concerns about this, we could codify it within the legislation. What those limits ensure is that we are not talking about tens of millions of dollars in losses in unfettered copying whereby people will simply say, “I qualify for a category, so I can copy to my heart's content.” They will still have to ensure that the copying itself is fair.

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you, Mr. Chairman.

Lady, gentlemen, welcome.

I wish to ask you if we might be provided a copy of your brief or of your thoughts, all of your thoughts, relating to Bill C-32. You know that in the context of a committee such as this one, you do not have the possibility to express yourself completely. It would therefore be greatly appreciated.

I would like to give you the opportunity, Ms. D'Agostino, to express yourself further, to go into the matter more in depth. You opened the door earlier to a discussion with regard to adequate compensation for the works of creators, and you also expressed the desire that someone invite you to pursue this reflection. I would like to hear your views on this matter.

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

Thank you, Chair, and thank you, witnesses, for being here. We've long anticipated your arrival--in my case, at least, it's been since 2005. It's not as long as Mr. Geist, but certainly I have taken an interest in this area.

Recently there has been news about The Pirate Bay, the world's largest illegal peer-to-peer file-sharing BitTorrent website. You'll find this is a theme I raised with officials last week.

The Pirate Bay recently lost an appeal of a copyright conviction in Sweden. The court, as you know, found that “The Pirate Bay has facilitated illegal file sharing in a way that results in criminal liability for those who run the service”. The three site founders were sentenced to prison and fined some $6.5 million U.S., I believe.

In 2008, prosecutors said that The Pirate Bay had 2.5 million registered users, peaking at more than 10 million users simultaneously downloading files, and was making $4 million a year from site advertising. It's clear that the site was, if you will, a high-volume and very lucrative business.

I'd like to ask all three of you, if I could, how you see Bill C-32stopping, if indeed it does at all, sites similar to The Pirate Bay--sites that facilitate the mass distribution of unauthorized copies of works--from being able to operate here in Canada.

I'll start with you, Mr. Sookman, and work my way back.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

The people from the Barreau du Québec said that Bill C-32 was not...

[Barry Sookman, Partner, McCarthy Tétrault, Co-Chair of Technology Law Group, As an Individual]

I would like to thank the committee for inviting me to appear today to provide input on Bill C-32.

Before starting my remarks, I would like to give you some background. I'm not telling you these things to boast, but because I understand some have expressed concern that I have one or two clients implicated in this legislation and that their views are shaping my perspective. This is not the case. I'm a lawyer who specializes in this area. I have worked and taught in it for many years. I'm a partner with the law firm McCarthy Tétrault and the former head of its intellectual property group. I'm an adjunct professor of intellectual property at Osgoode Hall Law School. I'm the author of five books, including the leading treatise on computer and Internet law. I'm a member of numerous committees, including those in the IP area. My involvement in copyright matters for creators, users, and intermediaries spans decades of practice. I've appeared in three precedent-setting Supreme Court of Canada cases, including CCH, which modernized fair dealing in Canada, and the Tariff 22 case, which examined the liability of ISPs. I appeared for the ISPs opposite a rights holder, SOCAN.

I'm here today in my personal capacity and am not representing my clients.

In introducing this bill, the government made it clear that its purpose was to enable Canada to have copyright legislation that would benefit the Canadian marketplace. It was drafted to create framework laws and to enable Canada to be a leader in the digital economy in line with our trading partners. I support these objectives. There are, however, areas where the bill will have unintended consequences that are inconsistent with those objectives. I hope to assist members of this committee in understanding these issues, many of which are technical in nature. In the limited time I have to address the issues, I would like to focus on several examples of technical problems that need to be fixed.

The government has said that the bill will give owners stronger legal tools to go after online pirates that facilitate copyright infringement. Minister Clement said that the bill goes after the bad guys, the wealth destroyers. To address this problem, the bill has a new section on the enabling of infringement. A technical problem is that as drafted, the section is likely ineffective, because it applies only to services designed primarily to enable acts of infringement. Most file-sharing sites, including peer-to-peer, BitTorrent, and pirate-hosting sites, are not designed primarily to enable acts of infringement but to facilitate the sharing of information and files.

There are two other technical problems. The government's intention is that ISPs should be exempt from liability when they act strictly as intermediaries. On the other hand, Bill C-32 is intended to ensure that those who enable infringement will not benefit from the ISP exceptions. However, the drafting does not make this clear. Only two out of the four exceptions expressly say this. Based on the differences in wording, a court might well conclude that a pirate-hosting site gets an ISP exception even when it is liable for enablement. This could not be anybody's intent.

Lastly, the bill exempts commercial enablers, the wealth destroyers, from being liable for statutory damages even when they facilitate infringement for a commercial purpose. This can't be anybody's intention.

The bill also contains a new exception that would let individuals take existing content and use it to create user-generated content. The intent is to permit an individual to use content to make a home video or create a mashup of video clips. This is an exception that to my knowledge does not exist anywhere else in the world. From a technical drafting perspective, the exception is so widely cast that it would most likely violate Canada's WTO TRIPS obligations. TRIPS mandates that exceptions must be subject to what is known internationally as the three-step test. The exception, as drafted, would permit individuals to do almost anything that the author could do with his or her work— including creating translations, sequels, or other derivative works—and publish the result on the Internet. They could also create collective works or compilations of works, such as the best of a TV series or their favourite iPod playlist, and post those on the Internet, and they can do a lot more. The result is that the author loses significant control over the uses of his or her work, a fundamental copyright concept.

Over and above this, there could be significant economic consequences to the author. The intention is to permit uses that would have no effect on the market for the work; however, the drafting permits aggregate effects on the market for the work, which would be very damaging and substantial.

Also, the individual's use of the UGC work must be non-commercial. A website operator can charge for disseminating the UGC work, but the author gets none of the remuneration. They would, however, in other countries that don't have this exception, countries that have let the markets solve the problem.

There are other technical issues with the bill that also need addressing, but, as the chair has pointed out, I'm out of time.

I would like to thank the committee again for inviting me to appear. I look forward to answering your questions.

Thank you.

[Prof. Michael Geist, Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual]

Thank you, Mr. Chair.

Good afternoon, everyone.

My name is Michael Geist. I am a law professor at the University of Ottawa. As I'm sure many of you know, I have been very active on copyright policy issues for many years. In 2007 I launched the Fair Copyright for Canada Facebook group, which grew to over 92,000 members and has local chapters across the country. Earlier this year I edited From “Radical Extremism” to “Balanced Copyright:” Canadian Copyright and the Digital Agenda. This book is the largest academic study on Bill C-32 to date, with peer-reviewed contributions from 20 leading Canadian experts.

That said, I appear before this committee today in a personal capacity and I represent only my own views.

While I am sometimes characterized as a copyright critic, the reality is that I am supportive of much of Bill C-32. When the bill was first tabled, I described it as flawed but fixable, and I had strong support for many of the compromises that are found within it. That's still my position.

l'm happy to talk about any elements of the bill, but I want to focus my opening remarks on two issues: fair dealing and digital locks. As you know, I believe the fair-dealing reforms represent an attempt to strike a balance between those seeking a flexible fair-dealing provision and those who are largely opposed to new exceptions altogether. I think the Bill C-32 compromise is largely a good one.

As a result of full-page advertisements and regular op-eds, we are all aware that some groups claim these changes will harm Canadian culture. l'd like to point to two reasons for thinking that the reality is far less worrisome and offer a potential amendment to alleviate some of those ongoing concerns.

First, fair dealing in education is not new. It already encompasses research, private study, news reporting, criticism, and review. As you can well imagine, these categories cover a considerable amount of the copying on Canadian campuses. These changes are not revolutionary but evolutionary. They are reforms that will enable the use of new technologies in the classroom and support student creativity, innovation, and curiosity.

Second, and most importantly, Canadian fair-dealing analysis involves a two-stage, two-part test. Part one is whether the use or the dealing qualifies for one of the fair-dealing exceptions. If it does qualify, part two is an analysis of whether or not the use itself is fair. The extension of fair dealing to education only affects the first part of the test. While Bill C-32 will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.

The Supreme Court of Canada has identified six non-exhaustive factors to assist a court that is part of a fairness inquiry, and this past summer the Federal Court of Appeal, in a case involving educational copying, confirmed that the Bill C-32 changes will still require a fairness analysis.

While I think some of these concerns are misplaced, there is still the potential to provide greater certainty to alleviate some of the writers' and publishers' fears. I believe this can be accomplished by codifying that six-part fairness test within the Copyright Act. This reform would ensure that judges would be required to assess the fairness of any use—including education—before it was treated as fair dealing. I believe it would also put to rest claims that fair dealing would lead to a free-for-all. In fact, quite the opposite is true; by design, the reforms would ensure that fair dealing is fair for all.

With regard to digital locks, which have been among the most discussed and most criticized aspects of the bill, I should start by clarifying that much of the concern does not come from digital locks per se. Companies are free to use them if they so choose, and there is general agreement that there should be some legal protection for digital locks since it is a requirement of the WIPO Internet treaties, and that's a clear goal of this legislation.

Rather, the concern stems from Bill C-32's unbalanced position on digital locks, in which the locks trump virtually all other rights, as the committee itself heard just last week from Mr. Blais in the context of education. This distorts the copyright balance not only for the existing exceptions within the Copyright Act, but also for the new consumer rights, which can be trumped by a digital lock just at the time they are widely found in devices, DVDs, electronic books, and more.

The most obvious solution to this would be to amend the bill to clarify that it is only a violation to circumvent a digital lock if the underlying purpose is to infringe copyright. This approach, which has been adopted by some of our trading partners, such as New Zealand and Switzerland, would ensure that while the law could be used to target clear cases of commercial piracy, individual consumer and user rights would be preserved.

l'd like to quickly make five points with respect to this proposal. First, this approach is compliant with the WIPO Internet treaties, which offer considerable flexibility in their implementation. I know there are competing opinions on the issue, but there is no shortage of scholarly analysis—including a piece I did in my book—as well as country implementations that confirm this is an option open to Canada. In fact, we need look no further than Canada's own Bill C-60 to see that Canadian officials recognize that this approach is consistent with WIPO.

Second, 13 years after the treaty, claims that Canada should adopt a U.S.-style approach run contrary to the emerging international record.

With the benefit of experience, there is a clear trend towards greater flexibility. Even the United States has recently added exceptions for jailbreaking phones and unlocking DVDs for some non-commercial purposes.

Third, the approach is entirely consistent with the goals of Bill C-32. It enables us to target commercial infringers who are profiting from their actions, since their circumventions would still constitute violations of the law. Meanwhile, it would provide businesses with the legal protections for locks that some are looking for and maintain consumer fairness by assuring Canadians that their personal property rights will still be respected.

Fourth, it is worth emphasizing that amending the new consumer exceptions alone--format shifting and the like--is not enough. For example, if the lock provision on format shifting were removed, consumers would still face the barrier of the general anti-circumvention provision. In order to address the issue, both must be amended to preserve the digital copyright balance.

Finally, in the event that the committee instead wants to consider specific, new, additional exceptions to the digital lock approach, I have provided the committee clerk with a full list of potential reforms, many of which are based on the rules found in other countries.

I look forward to your questions.

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

I call the meeting to order.

Good afternoon, everyone. This is meeting number 5 of the Legislative Committee on Bill C-32.

Today, first of all, I'd like to thank our three witnesses. We have Pina D'Agostino, professor of intellectual property at Osgoode Hall Law School at York University. Second is Professor Michael Geist, Canada Research Chair of Internet and e-commerce law at the University of Ottawa. Finally we have Barry Sookman, partner at McCarthy Tétrault and co-chair of the technology law group there.

On behalf of the committee, I'd like to thank all three of our witnesses for appearing today on such short notice. Thank you very much.

We will start with a five-minute presentation from Professor Pina D'Agostino.

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

Mr. Speaker, as I have said, we say that the balance exists already in Bill C-32. We balanced the rights and obligations of the government to protect those in the creative economy and also those of consumers.

We protect the rights of creators. We make piracy illegal in Canada. We also impose the international WIPO treaties. We also have limited fair dealing in this bill. We also protect the rights of creators to impose technological protection measures to protect what it is that they are creating.

We also stand up for consumers by having a notice and notice regime. We stand up for consumers by saying no to a massive new tax on iPods, cellphones, BlackBerrys and laptops.

We believe in balance and what is in the best interests of consumers and creators.

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

Mr. Speaker, this bill is unbalanced and irresponsible. Yesterday the artists said so themselves.

Among this delegation of artists was Claude Robinson, who fought a 15-year battle to have the courts recognize his copyright. He is a real symbol for copyright in Quebec. His presence reminded us that Bill C-32 transforms all creators into thousands of Claude Robinsons who will be left on their own to fight for their intellectual property rights and for fair compensation.

Is it not time to make significant changes to Bill C-32 to establish a fair balance between distributors and creators?

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

Mr. Speaker, our government's policy on this issue is in Bill C-32. We are also in talks with the Government of Quebec. In fact, I had a meeting with Ms. St-Pierre this week. Yesterday, I spoke with the Union des artistes and I stressed to them that this bill addresses the interests of both consumers and artists.

This is what the Canadian Film and Television Production Association had to say: “We applaud this Conservative government's copyright reforms.”

This is a balanced, responsible bill that is in the best interests of all Canadians.

Folk Music Awards

[Pierre Paquette, Bloc, Joliette, QC]

Mr. Speaker, the sixth annual Folk Music Awards gala was held on Saturday, November 20, in Winnipeg. Several Quebec artists were honoured, including Yves Lambert for his album Bal à l'huile, which won the traditional singer of the year award. Yves Lambert was, of course, one of the founding members of La Bottine Souriante and the Bébert Orchestre.

The ensemble of the year award went to Quebec's Le Vent du Nord for its album La part du feu. I should note that Yves Lambert and Le Vent du Nord are from the Lanaudière region.

To prove that I am not biased, I would also like to mention the songwriter of the year award, which went to a third Quebec artist, Francis d'Octobre, for his album Ma bête fragile.

I would like to take this opportunity to remind the government that awards do not pay the bills for artists and other creators, who are entitled to fair compensation for their work. That is why Bill C-32 needs major changes.

Copyright

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

Mr. Speaker, we listened to our artists: we conducted unprecedented consultations on Bill C-32. The Union des artistes is on the Hill today; I met with them. They had six proposals concerning our copyright bill. We agree with four of the six. However, we are against a new tax for consumers. That is not in the interest of consumers, artists or Canadians.

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

Mr. Speaker, the Bloc Québécois is not telling the truth about this issue. It is saying that it is artists versus everyone else. This is what one Montreal artist had to say: “Illegal downloading has been catastrophic for me and many of my colleagues. The government has taken an important step in addressing this issue by introducing Bill C-32. I want to thank the Conservative government.“ A francophone artist from Quebec said that. We are taking responsible action for artists.

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

Mr. Speaker, this is not a tax. These are royalties that go to the artists.

According to a coalition of consumer associations, Bill C-32 will also penalize consumers. By giving in to demands from big business, the Conservative government is allowing artists' rights to be restricted, denied even.

Does the government understand that if it deprives artists of their copyright royalties, consumers will be deprived of new artistic works? If artists starve, culture starves.

[Serge Cardin, Bloc, Sherbrooke, QC]

Mr. Speaker, approximately 100 artists from Quebec are on the Hill today to tell the Conservatives that they do not want Bill C-32 as it is presently constituted. If significant amendments are not made to it, Bill C-32 will serve only to impoverish our artists while making big businesses richer.

When 400 industries, 38 multinational companies, 300 board of trade associations and 150 chief executives are all supporting the minister and applauding Bill C-32 as it now stands, it is because they stand to benefit greatly from the bill at the expense of our artists. Close to $75 million in royalties and copyright will no longer be paid to artists and artisans if Bill C-32 is passed.

These members of Quebec's creative community are here to remind the Conservatives that the fruit of their labour is not free and that the government should not abandon our artists and our culture, since our culture is the self-expression of our people and of the Quebec nation.

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

At the risk of repeating myself, but also perhaps to provide some guidance to you, Chair, and your researchers, it might be helpful if at the next meeting this wonderful compilation done by our clerk is put in the form of theme. This would accord with what Mr. Angus has said, but also I think would be worth bearing out if we can actually break these down into categories.

I recognize that there are some people from particular areas who are going to want to talk about all aspects of Bill C-32, so it would be very difficult to pigeonhole these organizations into groups and those who wish to be witnesses, but it might be helpful in terms of us crafting the way ahead and the next steps.

Once again, in my experience one of the best ways to proceed is to know where you're going.

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

Before we begin our business, I would simply like to provide some information that I think is very important for committee members. Some 100 of Quebec's most prestigious artists, most highly renowned at the local, Quebec and international levels, will be coming here to Parliament Hill to tell us what they think about Bill C-32. They'll be here tomorrow between noon and 1:00 p.m. in Room 200 of the West Block.

Our visitors will include Luc Plamondon, who, as you know, is one of the most famous lyricists in Quebec and in the entire international francophone community. There will also be Robert Charlebois, Michel Rivard, Ariane Moffatt, younger artists such as Marie Mai, and the groups Mes Aïeux, Kaïn and Karkwa. There will be about 100 very well-known artists coming to talk to us about Bill C-32.

Obviously, if they are coming to speak with us, we should at least be polite enough to go and meet and listen to them. I expect Mr. Del Mastro, for example, parliamentary secretary to the Minister of Canadian Heritage, to be there and to go and meet the artists, who are coming here specifically to talk to us.

Thank you.

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

Good afternoon, everyone. This is the fourth meeting of the Legislative Committee on Bill C-32.

Welcome. It's going swimmingly, I hear.

We're here today, after having heard from the ministers and departmental officials in the last meeting, to discuss the planning of our future work of the committee and the path forward. Our discussions are open to the public.

You have three documents in front of you. The first one you have is the legislative summary that was prepared by the Library of Parliament. You also have a blank calendar that shows the days of the weeks that we have before the Christmas recess, which would include, as we are currently planning, meetings on Mondays and Wednesdays, from 3:30 to 5:30, which would mean this meeting plus five more before the break. You also have before you a list of potential witnesses. It's a rather thick document that contains roughly 200 potential witnesses, those who have either had their names put forward by the parties or who have requested to see the committee on their own.

I'd like to see us get a work plan coming out of today's meeting. I think we should probably at least try to plan to have some witnesses for Wednesday's meeting.

Madame Lavallée, you have the floor.

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

Mr. Speaker, as we have noted before, the opposition coalition has never seen a tax it did not like. In fact it has never seen one it would not hike. We know that for a fact.

Loreena McKennitt, Juno Award winning singer-songwriter said, “I would oppose the iTax. I would rather have a strict and predictable business model in which to conduct my business.

We can have that today. By unanimous consent, we could pass the copyright reforms today. Let us pass Bill C-32.

[Colette Downie, Director General, Marketplace Framework Policy Branch, Department of Industry]

Thank you for the question.

A number of provisions in Bill C-32 deal with the things you're mentioning. Some of the key provisions include provisions that promote computer program innovation, allowing third-party software companies to do things like engage in the development of new programs for software interoperability, error correction, reverse engineering, and security testing.

There are provisions that allow for technical reproductions of copyrighted material, things that are done every day now, like buffering or temporary copies of e-mails as they're downloaded. Even photocopiers sometimes make and temporarily retain copies of documents that would be technically infringing.

The provisions also encourage the development of new technologies by updating existing exceptions in the Copyright Act to encourage the development of new technologies like the Network PVR or the introduction of those technologies.

In addition, the bill targets those who promote and profit from copyright infringement, prohibiting the sale of tools or services to enable hacking of digital locks, with penalties for those who profit from that activity.

In addition, it gives strong new legal tools for companies like video game developers, to protect the investments they've made in their product so they can further innovate and provide jobs for Canadians.

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

Thank you very much, Mr. Chair.

Thank you to the officials from both departments for being here this morning.

I have questions for both departments. I'll start with the officials from Industry Canada, if I could.

When your boss, the minister, was here for the first hour, he spoke to us in very clear terms about how important the burgeoning digital economy is. He described Bill C-32 as complementing the digital media strategy that's also in the process of being developed. Both of these initiatives go hand in hand.

Could you please describe why Bill C-32 is so important for companies like RIM and OpenText, who lead the pack in terms of digital media, digital economy companies, and why Bill C-32 is important for the next RIM and the next OpenText?

[John Connell]

Turning to page 7, one theme that frequently emerged during the copyright consultations was technological neutrality. The bill includes provisions that are technologically neutral and reflect the reality of an ever-evolving media and technological landscape.

For consumers, the bill includes private-use exceptions that are not tied to a specific technology. It will ensure that businesses have the freedom to introduce innovative products and services, like the network PVR.

The bill includes clear exceptions that permit educational institutions and libraries to make better use of new digital technologies. For teachers and students, this includes an exception that will allow for the copying and communication, for educational purposes, of material publicly available on the Internet and not protected by a technological protection measure. It also includes an exception that will allow for the use of innovative technologies such as Smart Boards in classrooms, by extending the scope of current reproduction for instruction beyond specific media such as dry erase boards and flip charts.

Thirdly, at the same time, to ensure creators' ability to advance new digital business models, the bill provides copyright owners with remedies against those who circumvent technological protection measures or digital locks applied online or on CDs or DVDs to prevent unauthorized access to copying of their digital material.

Finally, the bill, as the ministers mentioned this morning, includes a requirement for a review of the Copyright Act by Parliament every five years to ensure it remains responsive to a changing environment.

This concludes our overview of Bill C-32.

Jean-Pierre, Colette, Barbara, and I would now like to answer your questions.

[John Connell, Associate Assistant Deputy Minister, Strategic Policy Sector, Department of Industry]

Thank you, Mr. Chair.

Pierre and I would like to present a short overview deck on Bill C-32, and I'd like to begin with three messages.

The first is one of thanks to you, the members of the special committee that's been established to review the bill. We know you've made a significant commitment, given the strong interest in the bill among Canadians. Your scrutiny, your time, and your effort are invaluable to us in the public service.

The second is, as officials, we'd be pleased to meet the committee at any time for technical briefings or bilaterally with any member of the committee to answer questions you might have. I find the field of copyright is both wide and complex, and as public servants our interest and duty are to help you understand the need for legislative amendments and all the issues that arise.

The third is that it's time for Canada to modernize its copyright law. There is a variety of reasons to do so, ranging from lining up with best practices and obligations that Canada has internationally, to reflecting advances in new digital technologies. We think this Parliament has a historic opportunity to update the Copyright Act and the Departments of Canadian Heritage, Industry, and other interested departments will spare no effort in assisting you in this task.

Turning to page 2 of the deck, in the last Speech from the Throne, the government committed to strengthening the laws that govern intellectual property and copyright “to encourage new ideas and protect the rights of Canadians whose research, development and artistic creativity contribute to Canada's prosperity”.

This bill will modernize the Copyright Act. It will provide clear copyright rules to support creativity and innovation, as well as contribute to economic growth and job creation. The bill offers a balanced approach between the rights and interests of users and the creative community to grow and prosper in the growing digital economy in response to a wide array of views and issues that were raised by Canadians in 2009.

I'd like to emphasize that Bill C-32 strives toward a common sense middle ground. It will be impossible to accommodate all known interests and proposals, and victory on this bill will be very much defined by where Parliament finds the centres on the issues before you.

Again, we look forward to assisting you with that task.

[The Chair, Conservative, Gord Brown]

We're going to call back to order this third meeting of the Legislative Committee on Bill C-32.

We have before us now departmental officials from both Canadian Heritage and the Department of Industry. We have Jean-Pierre Blais, Barbara Motzney, John Connell, and Colette Downie.

To our officials, you have the floor.

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

Yes, but it's difficult to calculate that fully. We are talking about technologies that change on a daily basis. You would like to identify the financial consequences for each and every artist since the advent of MP3 players, but it is absolutely impossible.

Mr. Chairman, I'd like to raise a point of order, if I may, because the fact is we are here to talk about Bill C-32. What you are talking about is not included in this bill. We are not blind, but when we held our consultations, we listened to what people had to say.

As I was pointing out to Ms. Lavallée, no group brought forward balanced proposals reflecting the interests of both consumers and creators. When the bill was tabled on June 2, we forwarded it to all Bloc Québécois MPs and every member of Parliament in the House of Commons. So, if you have comments on the bill, we are interested in hearing them.

We know that Mr. Angus has presented his own views and that he would like there to be royalties paid through the creation of a new tax on iPods and other technologies. We do not agree with him.

If you have any ideas, we would like to hear them. However, what you are referring to has nothing to do with the bill, because we have not included that in this policy. In fact, it's impossible to--

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you, Mr. Chairman.

Good morning, ladies and gentlemen.

Mr. Clement, Mr. Moore, I listened to your presentation and, from the very beginning, I've had the sense that we are talking, not so much about the Copyright Act, but about a bill on technological developments which is intended to help business.

We basically were asking whether you had done an extensive impact study in order to determine what creators would be losing, permanently, if Bill C-32 were to pass. There are income losses for artists here, but nothing is being offered in the way of assistance. There are net losses.

Also, Mr. Lake is comparing renumeration for artists and creators. They talk about a tax. Of course consumers will have to pay, but they are always the ones who pay. The users are always the ones who pay. They pay us and they pay you.

A survey was done in January, 2010, and not by just anyone; it was carried out by the Praxicus Public Strategies firm founded in 1999 by the Conservative pollster Dimitri Pantazopoulos. The results are pretty clear: 67% of Canadians support the idea of paying musical creators for private copies; 71% of Canadians feel that the current 29¢ levy on blank compact discs is fair to consumers; 71% of Canadians support royalties of between $10 and $20 for MP3s and iPods. You say that you're trying to defend consumers, but the fact is that they are willing to compensate artists and creators who create works for them.

Have you really assessed the economic repercussions of this bill for creators and the artistic community?

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

Mike, if I might, I would just add a little more momentum to that, especially on the education side. I say so because I think I didn't address Marc Garneau's comments. He raised the issue of education and that the Liberals are considering an amendment to this. Obviously, we'll wait to see the language of what's proposed, but we think this strikes an appropriate balance.

I had meetings this past week in my office with book publishers and those who are concerned about what the fair dealing provisions in the legislation might mean for them. Again, I know this is technical and complicated, and that's why copyright and intellectual property law is so difficult, in trying to imagine the unintended consequences going forward. That's why I'll bridge back to what I said in my opening comments about the five-year renewal of this legislation, that we'll learn some things as we go forward. This is not a case of our sitting here in the last week of November 2010 and saying we know for sure what the world will look like. We want to have an ongoing engagement on this.

But on the education provisions you mentioned, Mike, I just want to make sure that the committee knows that the Council of Ministers of Education, the ministers of education from across the country, came together and endorsed this legislation, Bill C-32, because they said this legislation “allows students and educators in elementary and secondary schools, colleges, and universities to have fair and reasonable access to...materials” that they need. And the Canadian Association of Research Libraries said they applaud the government because we have “respond[ed] to the copyright reform concerns expressed by the library and education community”. Students' organizations have also come out in support of this legislation because they think it helps students.

Now again, counterbalancing that with the needs of those who are providing and creating the educational materials is something that we've done our best to do in this legislation, but we think so far it strikes the right chord from what we've heard in our consultations.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Thank you, Mr. Chair.

I'm interested that all three opposition parties are continuing to talk about the iPod tax, and I'm going to start on that again. It's interesting to hear Mr. Rodriguez point to a levy as somehow not being the same as a tax. If we talk to our constituents and tell them that in addition to paying what they pay now for an iPod or a BlackBerry, they're going to pay some additional amount—$10, $20, $50, whatever it might be, even $75—my constituents are going to call it a tax and they're not going to be happy about it. I think we need to encourage Canadians to adopt new technology and to be able to purchase new technology, so they can consume the creative works they want to consume and can go out and purchase those creative works. That is what's going to further the interests of the industry, in my view anyway. It also seems to me to be something that's not covered in this bill. There are lots of great things that are covered in this legislation, and those are the things that we need to talk about.

At some point, Mr. Angus' private member's bill is going to come forward, and we can vote as we agree or don't agree with his legislation. Personally, I oppose that private member's bill, but certainly we can have a good debate on that when the time comes.

In terms of this bill and what it does, I just want to talk a little bit about the digital economy, particularly as it relates to students and the ability to flourish in an increasingly digital environment.

To Minister Clement, could you maybe highlight for us how Bill C-32 expands the ability of teachers and students to make use of digital technologies and copyrighted materials for the purpose of education?

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

You mentioned chambers of commerce.

Françoise Bertrand, President of the Fédération des chambres de commerce du Québec has stated that Bill C-32 is “critical to maintaining a competitive and stable business environment in Canada” and in Quebec for the benefit of artists and the cultural communities.

As Minister of Canadian Heritage, I don't want arts and culture in this country to become a hobby. I want people to derive an income from it, and I want them to be able to engage in the marketplace. Being able to engage in the marketplace means being able to protect what you're creating, with digital protection measures. It also means that the government has an obligation. The government has an obligation to take whatever legislative steps are reasonable and necessary to protect people who are being stolen from.

That's our obligation as members of Parliament and that's what this legislation seeks to do—to stop theft from people who are creating software, video games, televisions shows, and the new 3D technology. We're talking about patent protection for the creative community. That's what this is. We're allowing them to protect what they're creating and to engage in the marketplace. That's what this legislation does, and it takes us a great distance. People can be critical of what may not be in the legislation. But what is in this legislation—the ratification of WIPO, the fair-dealing policy, the digital protection measures—is a huge victory for all Canadians.

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

Ideas came forward in the consultations, but none of them are practical or workable in the transition that is happening right now in streaming digital media—video games, television shows, movies, and so on. We haven't seen a proposal that we think is workable or practical in the new era.

As Minister Clement said, this is an unnecessary attack on consumers. I don't think it serves our cultural communities to make it more expensive for consumers to consume Canadian culture. As Minister of Heritage, I can tell you that we spend in our department hundreds of millions of dollars every year to help Canadians to create Canadian music, to support theatre, to support television, movies, books, and so on. I don't think it makes it more expensive. I don't think it serves anybody to make it more expensive for Canadians to buy a Kindle or to read a Canadian author. I don't think that serves Canadian authors or consumers. It doesn't serve anybody. So I don't think it works. And I don't see any workable proposals. Even the proposal that Charlie has put forward has massive loopholes in it that would impose a massive tax on a number of items. Anything that has a hard drive would be subject to this proposal. That includes automobiles and devices that aren't used for listening to music.

Automobiles have hard drives, Charlie. I don't know what wagon you go to and from home in. Automobiles have hard drives to which you rip music. By the way, that happened many years ago, and this would be subject to the tax. Your proposal, your legislation, says that anything with a hard drive would be subject to this massive new tax. This would include pretty much every electronic device out there—memory sticks, automobiles, cellphones, laptops, computers, desktops, and everything in between. You're using a scattered approach to address a focused problem. We think the focused problem is that creative communities are being gutted because we don't have a strong intellectual property regime. With Bill C-32, we're trying to stop the stealing.

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

Minister Moore, I know you have a long list of the artists you say support the bill. Madame Lavallée and I have people who are very concerned. One of the issues that I've heard again and again is that Bill C-32 seems to strike out systematically a number of existing rights of compensation that have existed. The Educational Rights Collective licence is removed. The broadcast mechanical tariff for music is removed. That's $21 million. It goes to musicians. Exemptions override numerous collective licence rights and numerous sections under education. And then of course there's the notorious levy, which you've defined as a “killer tax”, that has provided $200 million to artists since 2000. We've now seen a 60% drop in the last two years because it hasn't been updated.

Now, I believe that in the digital age we're talking about access and remuneration. Yours seems to be that it's going to be for free or you can lock it down. So would you be willing to amend the bill to address the issue of compensation that is being lost directly through provisions in the bill in order to have this bill go through?

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

Welcome, Ministers.

I don't want to be brusque at the beginning. I was hoping we were going to have two hours. We only have an hour; as the lone New Democrat, I have seven minutes of questions, so I'm going to move you along quickly through the questions, because there are a number of issues.

The issue of copyright is a fairly straightforward concept. It's the right to copy and decide who gets to copy and who gets to be remunerated. My concern with Bill C-32 is that it seems to put copyright a little bit on its head.

Minister Moore, you're claiming that the public now has numerous new rights for making copies to back up, to time shift, to extract sections, all without any compensation to artists, yet these rights only exist if a technological protection measure is not interfering with them.

Now, in July I wrote to you asking to get a legal opinion from WIPO about whether or not the exemptions that would exist in the analog world can be applied to the digital realm and we would remain WIPO-consistent. I haven't seen that legal opinion, but since July, the United States court, for example, has ruled that even under the DMCA, the fair dealing provisions that exist within rights are not to be trumped by a digital lock.

We're now in a situation where Canadian citizens would face even more restrictive limits on rights that they're being guaranteed than under the notorious DMCA. So my question is, are you willing to amend the bill, which brings us into line with many of our WIPO-compliant partners, or is this going to be fixed in stone and we're going to have fewer rights than our U.S. neighbours, who are governed by the DMCA?

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

Your comments are a little strange, considering that the Quebec National Assembly voted unanimously in favour of substantial amendments to Bill C-32. Everyone wants--

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

I allowed you to speak, so please extend me the same courtesy.

I also have quotes from the Canadian Independent Music Association and from Quebec artists. For example, the artist Loreena McKennitt says that the changes to the Copyright Act proposed in this bill are fair and reasonable

I also have quotes from the Canadian Alliance of Students Associations, private broadcasters in Canada, including some in Quebec. The International Alliance of Theatrical Stage Employees is commending the government for protecting our creative industries “as well as the men and women who work in film and television production in Canada”, including Quebec.

Since we're talking about music, I also have a quote from the Canadian Council of Music Industry Associations, which believes it is absolutely critical that we have recognized in this bill the value of products created by this country's creative industries.

From one end of the country to the next, Canadian artists were affected by Internet piracy. That is why we are enthusiastically supporting Bill C-32 and the Conservative government's efforts to reform copyright law.

Artists have made their views known and we have listened. We are proposing a balanced, responsible bill which reflects the interests of Canada as a whole, both creators and consumers.

I am pleased that we have secured the support of the provinces of Canada. Ministers of Education and governments in Canada, be they Conservative, Liberal or New Democrat, have voiced their support for our bill, which is responsible, balanced and in the interests of all Canadians, including artists who are strongly in favour of the bill. The provisions of this key piece of legislation aim to protect their ability to continue to develop creative content all across Canada, including in Quebec.

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

Thank you.

To be frank, you are completely wrong. I have a long list of quotes from artists and organizations that promote the interest of artists in Quebec and the rest of Canada and who are fully supportive of Bill C-32.

For example, I have quotes from the Canadian Entertainment Software Association.

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

Thank you very much.

I have seven minutes, but I would have preferred the two ministers to be with us for two hours. It seems to me that would have been the normal procedure.

There is a great deal to be said about Bill C-32. First and foremost, the point must be made that there is no balance in this bill. I am happy that you are both here today, side by side. I want to emphasize the fact that this bill has been designed for big business, the seven major U.S. companies, major broadcasters, gameware and software companies. This bill is based on use of the digital lock, which in no way meets the needs of the music industry or musicians. According to the Union des consommateurs, it reflects “a punitive approach that has proven ineffectual elsewhere in the world”. It is also a bill that relies on prosecution. And the fact is that large corporations have far greater means to take on legal battles than rights holders and creators of artistic content.

In fact, in defence of this bill, your Parliamentary Secretary, Dean Del Mastro, stated in the House on Friday morning that everyone supports you: 400 film, television and interactive media companies, 150 corporate CEOs, who are making $4.5 billion thanks to artists, 38 software multinationals and 300 chambers of commerce. That is what he said. But he did not name a single organization that defends the rights of artists, nor did he mention a single artist, musician, performer or author. And that is how the parliamentary secretary to the Minister of Canadian Heritage defends a bill that is supposed to defend the rights of artists.

In Quebec, the number of opponents of the bill is huge. I could give you a full report, but let's just say that since the day before yesterday, the Quebec National Assembly is at the top of that list, and it's unanimous. Sovereignists are not the only ones represented in the National Assembly, Ministers.

As I said, this is a bill designed for the industry. A digital lock may work for gaming software and possibly even the film industry, but it certainly doesn't work for the music industry. Let me give you another example. A musical work will never be worth more than $20,000, since your bill has preset damages at no more than $20,000. On the other hand, circumventing a digital lock—and it is clear that this is aimed at big business—will result in a $1 million fine and a five-year term of imprisonment. It is obvious that there is a double standard here.

One does not have the sense that the Minister of Canadian Heritage has really defended this bill. The Minister of Industry has vigourously defended it, though. The Minister of Canadian Heritage has been totally absent from the debate. The non-modernization of private copying will cost artists $13 million. The elimination of transitory copying will cost $21 million. The education exemption will cost $16 million. Overall, we are talking about $50 million.

Minister Moore, you have done nothing to defend the rights of artists. You wrongly state that consumers support you. You know that is not true. The Canadian Consumer Initiative has told you that and the Union des consommateurs has repeated it over and over. Under this bill, not only are artists' incomes reduced, but no new support is offered them either. No one is defending the rights of artists in this government where we have, not one, but two Ministers of Industry.

That's the reality, Mr. Moore. There is a complete imbalance. Mr. Moore, you have failed in your duty to defend artists. I challenge you to tell me how this bill can possibly benefit artists and creators of artistic content.

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

Thank you, Mr. Chair.

I would like to say at the outset that I welcome your opening remarks. We in the Liberal Party also definitely want to proceed with haste on Bill C-32. It has been a long time coming. It is with some regret that we realize that our undertakings on WIPO go back to the previous century, if I can say that. So we definitely need to get on with this.

I also welcome your comments on achieving a balanced project here. We must try to achieve that, and hopefully we will demonstrate the wisdom of Solomon in coming up with a balance that will address not only the needs of our consumers, but also the needs of our artists and creators.

As you know from speaking to this in debate, we believe that a number of issues will need to be looked at in greater depth. I would like to start with one that deals with the question of digital locks.

At the moment, for products that do not have digital locks, the bill allows for the consumer to do some format shifting or time shifting, and this is welcomed. However, it is also clear that if there is a digital lock and a person infringes on that, they are breaking the law.

Minister Moore, I would like to ask you about a comment you made on Power & Politics on November 17. You said:

When I buy a movie, I've paid for the movie. To ask me to pay for it a second time through another device--and to assume that I'm doing illegal copying, to assume that I'm being a pirate, to assume that I'm thieving from people because I happen to own an MP3 player or a Blu-ray player or a laptop, I think treats consumers unfairly.

How do you reconcile that with the fact that you have also said that if you buy a product that is equipped with a digital lock, it would be against the law for you to infringe on that and put it on some other device for personal use?

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

I would just like to make a couple of additional comments.

First I'd like to thank members of this committee for agreeing to sit on the legislative committee. I know many of you have parliamentary obligations beyond this committee and sit on other committees. I think your agreement to have the legislative committee, where you have more flexibility to deal with this legislation and to come together and work cooperatively on what is large, complicated, and technical legislation is a very good sign of cooperation for something that I think we all agree is essential for Canada's future, which is a true, proper modernization of Canada's intellectual property rights regime. So I want to thank all members of this committee for agreeing to this process and also for inviting me here today.

The consultations that Minister Clement spoke about are what resulted in this legislation.

Bill C-32 is the result of the extensive efforts made over the last decade to modernize our copyright law. It is flexible, balanced and consistent with international standards. It reflects the exact approach that is needed to create jobs and promote the new technologies of tomorrow. Allow me to explain why it's important.

The contribution of the digital industries that make up a huge part of Canada's economy, frankly, can't be understated. They comprise, in total, 5% of Canada's GDP. That's nearly $50 billion in direct economic impact for Canadian industries, nearly one million jobs across Canada, and growing.

It is absolutely essential that we protect these jobs and these industries that are critical to Canada's economic success.

Digital technologies are fuelling the Canadian economy and enabling job creation. For example, the entertainment software industry represents $1.7 billion a year for Canada's economy. More than 250 gaming development companies employ more than 14,000 people across the country.

Canada's film and television industry has over 160,000 jobs from coast to coast, a $5.2 billion industry for this country. These are important jobs that we as parliamentarians must be committed to ensuring stay in Canada and are protected well into the future.

Before we take any questions, there's one central part of this bill that I think has been underreported and I think underappreciated in terms of Canada's intellectual property rights regime, and that is that this legislation, as many of you know, has a provision within it that mandates Parliament to review Canada's intellectual property regime and our copyright laws every five years. By law, Parliament will be forced to keep our copyright legislation up to date going forward.

This week marks the 10-year anniversary since the last time Canadians elected a majority Parliament. Because of successive minority Parliaments, it's become politically very difficult, I think, for this legislation to be addressed and updated, in spite of many efforts in the past by John Manley, by Jim Prentice, and now by Minister Clement and I to get this right.

I think what's important is that the political pressures of Parliament and the possibility of an election campaign cannot arrest our responsibility as a country to maintain our intellectual property rights regime. So while we think that Bill C-32 strikes the appropriate balance in terms of what's in the best interest of all Canadians, we also recognize that in the future there will be new technologies, new pressures, new dynamics that come forward, and in spite of any political dynamic, Parliament must be forced to make sure that Canada's intellectual property rights regime stays up to date, in line with international obligations, and, most importantly, in line with what's in the best interests of Canada's future.

So I think that element of the bill, the five-year mandatory renewal of this legislation, is the big win of this legislation for all Canadians. It will force Parliament to have to deal with this legislation on an ongoing basis to make sure that this massive engine of Canada's economic growth, which is the creative economy, will forever be well served by Canada's intellectual property rights regime.

Again, I want to thank all of you for being involved in this process. This is a large legislative effort. It's a sincere effort on our part to get this right in the best interest of all Canadians. We look forward to working with you in the weeks ahead.

[Tony Clement, Conservative, Minister of Industry]

I'll begin, Mr.Chair, if that's all right with you.

Thank you very much, and good day, colleagues. Thank you for allowing both of us the opportunity to speak to the committee about our government's Copyright Modernization Act, Bill C-32.

With this bill, the Harper government is keeping its promise to introduce legislation to modernize Canadian copyright law, protect and create jobs, foster innovation and attract new investments to Canada.

The act strikes a balanced approach. It is both consumer and creator friendly. It is the result of an unprecedented consultation process. We've received submissions from over 8,600 Canadians. There were face-to-face meetings in nearly every major city in Canada, and we took into account the views of artists, performers, shoppers, surfers, business people, and students.

Today I can confidently say to you that this bill represents what we feel is the best compromise for the betterment of both creators and consumers that we could possibly reach. Frankly, for a bill of this scope, balance is our only option.

Mr. Chair, on Monday I delivered an interim report to Canadians on the progress our government has made on developing Canada's digital economy strategy. As a government, we are committed to encouraging further engagement and growth in the emerging digital economy.

Digital media is poised to transform our economy in ways we have not yet imagined. Worldwide the digital media sector is expected to grow to $2.2 trillion over the next five years.

To flourish in a global digital economy, Canada is not only going to need strong technological industries, we're also going to need to equip our labour force with the digital skills necessary to embrace and succeed in an era of new media, services, and commerce.

Bill C-32 is an important brick in the foundation we are building to support the digital economy of tomorrow.

Technology continues to evolve quickly. New devices and products are constantly coming on the market, and it is important that our Copyright Act be adjusted to that evolving digital environment. Our government anticipated this situation.

That's why this legislation has been drafted as technology neutral, to stand the test of time and adapt to the technologies of tomorrow. It removes barriers to the smooth introduction and adaptation of technologies like the network personal video recorder and file computing.

In the classroom, it ensures that online lectures, Smart Boards, tablet computing, and other innovative technologies, and, most importantly, the students they benefit are not going to be disadvantaged under the law.

Our kids can learn in a multitude of ways with the aid of a multitude of technologies. With this legislation we'll be able to better equip them with the tools they need to learn, so that they can grow into the digitally skilled and tech savvy workforce Canada needs to be competitive in, in the digital age.

These amendments are needed not only for the schools, but also for all Canadians who are involved in activities such as home schooling by parents, distance learning or skills acquisition.

The bill ensures that Canada's students will benefit from material that has already been made publicly available online as a powerful learning tool in the classroom wherever that classroom may be.

To sum up, Mr. Chair, this is an important and essential piece of legislation. It is Canada's foundation for the digital economy of tomorrow, and what Canadians need now is the timely passage of this bill. We cannot wait any longer.

I'm sure I don't need to remind anyone in this room that the last time the act was updated we were waiting for Titanic to come out on VHS so we could watch it at home on our VCRs. Times have changed.

Thank you, Mr. Chair.

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

Good morning, everyone.

This is the third meeting of the legislative committee on Bill C-32. Today we have two ministers, Minister James Moore, the Minister of Canadian Heritage and Official Languages, and Minister Tony Clement, Minister of Industry. We're happy to have both ministers here today.

Minister Moore, you have the floor.

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

Mr. Speaker, our bill is fair and responsible and it reflects consultations that were held across Canada.

Our copyright legislation, Bill C-32, is now before a legislative committee to consider how Canada could best move forward.

We have put forward our proposals. The only thing we have heard from the opposition side, the only proposal it has come up with to help consumers and protect the creative communities, is to impose a massive new tax on consumers on iPods, cellphones and BlackBerrys. We reject that. It is bad for consumers. It is bad for the creative community to make it more expensive for Canadians to consume the creative community's creations. We are opposed to an iPod tax. We stand with consumers.

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

Mr. Speaker, the government has to stop saying that everyone applauds its bill because that is not true. In Quebec, artists, creators, authors, composers, editors, the Union des consommateurs, which represents consumers, and the National Assembly are unanimously calling for major changes to Bill C-32.

Does the minister understand that he has to change his big-business-friendly bill substantially, finally recognize creators' copyright and compensate them properly?

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

Mr. Speaker, indeed, we have listened to that call. It was the Conservative government that engaged in unprecedented consultations with the artists of Quebec and Canada in order to draft Bill C-32 to modernize the Copyright Act. It is for the benefit of all Canadians, consumers and creators alike. Where we disagree with the Bloc Québécois is on a new tax on iPods. It would not be in the best interest of consumers.

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

Mr. Speaker, the National Assembly of Quebec has unanimously adopted a motion calling for major amendments to Bill C-32 on copyright. The elected members in Quebec are calling on the Conservative government to protect Quebec creators better against illegal copying of their works and to compensate them better.

Will the Minister of Canadian Heritage listen to this call from Quebec and recognize the role of the creators of content and the importance of intellectual property to the vitality of Quebec culture?

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

Launching special committees like this, or any committee at the beginning of a session, is always problematic in the sense that we're all planning ahead. We have an extremely important meeting with our leader, planned quite some time ago for tomorrow, to talk specifically about Bill C-32. His availability of course is much tighter than our own availabilities, which are quite tight.

Given the comments from the Bloc and from Mr. Angus as well, if the committee is amenable, we're ready to take off like a bat out of hell on Monday, and to be there Thursday morning, but tomorrow a bunch of things complicate our lives, because we did not know, coming into this today, where the slots were going to be. I'd ask for a little bit of--how shall I put it?--compassion on the part of the committee with respect to tomorrow's time slot.

Thank you.

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

Mr. Chair, it is needless to say that I will be voting against that because I think my motion is reasonable. The Conservatives might move all the motions they want and for as long as they want, but that will not change my mind. Bill C-32 was introduced at first reading in the House on June 2. It took them five months to introduce the bill at second reading. Out of those five months, there were three months when Parliament was sitting and when they could have introduced it. They could have come back to the House with Bill C-32 at any time. Everyone was expecting it. And yet, we did not see anything resembling Bill C-32 until November 2, about two weeks ago.

And now they are off and running like crazy. They want to stuff C-32 down our throats and do not want to hear from witnesses, probably because they do not want to hear a number of truths. They are disregarding the rules of the game. We absolutely must take the time to do serious work and listen to what witnesses have to say. We need time between meetings to read the serious briefs that witnesses will have prepared. Some will place all their hopes in those briefs; others will infuse theirs with their articulated analyses. As parliamentarians, we must listen to them and respect what they have to say by taking the time to read what they will have written before presenting their summaries to us.

They can move amendments until the cows come home—it appears that is their right—but people on Twitter are listening and are realizing that the Conservatives only want to buy time. That is dumb because they are wasting both their time and our own today by moving amendment upon amendment, when all they want is to buy time. That does not make sense, but I for one am fed up and hope that this will be the last amendment we will have to defeat.

Thank you.

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

Good morning, everyone. We are of course going to spend some quality time together over the next little while and we are here today pursuant to the order of reference of November 5, 2010, referring Bill C-32, An Act to amend the Copyright Act, to this legislative committee.

What I suggest is that we deal with the following items. Now, a special legislative committee is somewhat different from a standing committee, so I think the first order of business would be for our clerk to give us a little presentation on exactly what the differences are.

Madam Clerk.

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

Mr. Speaker, I will continue a little further down the page with all the groups that have come forward in support of Bill C-32, including entertainment software companies such as EA, Microsoft, Nintendo and Ubisoft. I think some of those are in Quebec. They are supporting this.

Ultimately, here is what this is about. The Bloc, the NDP and the Liberal Party all voted earlier in the House to extend something that we referred to as the iTax, a tax on digital devices and memory devices. Canadians do not want to pay fees and taxes on upgrading and updating media. This kind of tax on technology is regressive thinking. That is the Bloc—

[Roger Pomerleau, Bloc, Drummond, QC]

Mr. Speaker, I also have a nice big page. More than 50,000 creators, artists and artisans in Quebec strongly condemn parts of Bill C-32, which contains no fewer than 17 exceptions to the requirement to pay a copyright fee. ADISQ, the UDA, SARTEC, DAMIC and SODEC, in short, Quebec's entire cultural community is demanding amendments.

Will the government amend its bill to protect Quebec artists' copyrights?

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

Mr. Speaker, the special legislative committee will be considering Bill C-32 beginning next week. It is important that the member be aware of how many people actually support the bill: over 400 film, television and interactive media companies; 150 chief executives across Canada, representing companies with $4.5 trillion in assets; 38 multinational software companies, including Corel, Dell, HP, Apple, IBM and Intel; 300 of Canada's board of trade associations; 25 university student associations. It is a big page. I hope he has another question.

[Roger Pomerleau, Bloc, Drummond, QC]

Mr. Speaker, the members of the National Assembly unanimously adopted a motion calling for an overhaul of Bill C-32, An Act to amend the Copyright Act, thereby showing their solidarity with the creators and artists who condemn the fact that the bill will create a new group of workers who will be dispossessed of the fruits of their labour to benefit the big distribution companies.

Will the government finally listen to Quebec and amend its bill to protect Quebec artists and culture?

Procedure and House Affairs

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Mr. Speaker, pursuant to Standing Order 113(1), I have the honour to present in both official languages the 21st report of the Standing Committee on Procedure and House Affairs regarding the membership of the legislative committee on Bill C-32, An Act to amend the Copyright Act.

[Dean Del Mastro, Conservative, Peterborough, ON]

Madam Speaker, our party has been very clear. We are not going to support an iPod tax.

In fact, the member well knows that when the Canadian Recording Industry Association came before committee, it indicated to her, “You want to give us scraps. What we want is a market”.

That is what Bill C-32 would provide. It would provide the opportunity to re-establish a marketplace where people buy music, and it would absolutely shut down illegal file sharing in this country. That is what we need to do. We need that member on board.

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

Madam Speaker, the problem with Bill C-32 is that it takes away a great deal of revenue that artists were already receiving, from private copying for example, without replacing that revenue with something else, quite the contrary.

Again, the parliamentary secretary keeps saying that it was a tax on iPods. It is not a tax; it is a royalty. A tax goes into the pockets of the government, while a royalty goes to an artists' collective that distributes the money according to a complex but fair formula.

To answer the assertion that consumers are not interested in this, I would like to remind the parliamentary secretary that a Conservative Party pollster, Dimitri Pantazopoulos, conducted a survey in January 2010. He found that 71% of Canadians think that the current royalty of 29¢ on blank CDs is fair to consumers. These same Canadians are also prepared to pay royalties that could run between $20 and $30 on MP3 players and iPods, the type of devices that could hold 7,500 songs or 500 CDs. And 58% would pay up to $20, 59% would pay $25, and 56% would pay $30. Consumers—

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

Madam Speaker, I will do my best to provide an answer for that statement as factually as I can.

To begin with, the Minister of Canadian Heritage and Official Languages is not in the House. That is the first answer I would provide, but the Minister of Canadian Heritage and Official Languages is most certainly on board with updating the Copyright Act.

Bill C-32 is an outstanding bill. While it may need some technical amendments, upon which we have consulted with some groups, let us face it. We have the basic tenets of the bill right.

What is so important to the constituent who has just been cited by the hon. member is that we will actually put a system in place again whereby a creator who creates a piece of music, video or intellectual property can sell it, rather than have it stolen or compromised over the Internet.

It was mentioned to me the other day that Canada is the number one location in the world for Bit Torrent sites. Why is this happening? It is happening because we need to update the Copyright Act. Unless members like this get on board, frankly, we will have a difficult time doing that. The hon. member would prefer to favour a system whereby we would put a tax on devices, an iPod tax, a digital tax or something like that, rather than actually tackle the problem. The problem is that the Copyright Act is out of date.

Furthermore, in the statement it was indicated that Bill C-32 is just Bill C-61. Actually, I worked on Bill C-32 and there are a lot of differences between Bill C-32 and Bill C-61. I thought Bill C-61 was a good bill, but Bill C-32 is a much better bill and corrects some of the shortfalls in Bill C-61.

I can also say to the hon. member that we have been told by groups from across the country that this bill does strike the appropriate balance. In fact, I would argue that she should actually speak to her constituents and indicate to them what she is lobbying for, and in fact she has asked the same question many times. What they are actually looking for she refers to as a levy, but my constituents will not see it as a levy. It will be as much as $28 per device, which is what ACTRA has indicated to me when they met with me the other day. It would be added on to digital devices. That is what they would request at the copyright collective. On top of that $28, which would be arbitrarily added to the price of every single digital device, we would then also pay sales taxes in the various jurisdictions, so it becomes even more.

People at home are asking why we are taxing technology. Why would we want to put a tax on technology? They want us to just make the system work. If people want music, they will buy it.

What we want to do is shut down the sites that are allowing people to obtain these works illegally, music, movies or whatever. We want to shut down illegal file-sharing.

At the same time, we will allow for format-shifting, so if people buy CDs and want to format-shift them on to their digital device, their BlackBerry, their iPod, their laptop, their home computer or whatever the case may be, we will allow that. Bill C-32 is entirely technologically neutral. It allows for a review every five years, and it is in the interest of all Canadians. An iPod tax is not in the interest of all Canadians.

The House resumed from November 3 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.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Yeah!

In Bill C-32, with regard to the exemption which is extended to education, where it refers to fair dealing, what does the word "fair" mean?

[Jean-Pierre Blais]

No, absolutely the advice is informed not only by what's happening in Canada but what also is happening at the international level. You'll notice that in the preamble of Bill C-32, it does reference the fact that we are cognizant of international standards. So yes, it's part of the evaluation.

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

Thank you.

It's excellent to have both Industry and Heritage.

Mr. Blais, we've talked many times, so I'm not going to focus on you today, but I want to say that you did say Canada is a world leader. I certainly agree. I think that in the six years I've been here, with much of the frustration we've had about us lagging behind in terms of moving to the new platforms, of getting our isolated cultural silos into the digital sphere, I'm seeing phenomenal change, even within the last year. In particular I commend you on the magazine file. I think it's really exciting.

But I'd like to talk to Mr. Beaudoin because we don't get that opportunity very often. Please don't take it personally after I've complimented you.

Mr. Beaudoin, I'm interested in where we're going to be going in terms of becoming internationally WIPO-compliant in updating our copyright laws. Certainly we all agree that this is a key element.

I'm interested in the decision around the digital locks. Article 10 of the WIPO Copyright Treaty has some pretty specific language about the right of a country to bring into the digital realm, when it becomes WIPO-compliant, the exemptions that existed under its laws, and that the protection for digital locks, or TPMs, can be legally supported as long as they don't interfere with the rights that have existed already.

I see that under Bill C-32 the public will be granted a number of rights, but those rights don't supersede the digital locks. Why was the choice made to say you can have these rights as long as they don't interfere with the digital lock?

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you. Good afternoon, everyone. We don't have a lot of time. I will ask a few brief questions.

Mr. Blais, at what point was your department consulted on development of Bill C-32?

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

I'm very interested in what you're saying because I think the Shangri-La of technology would be to be able to connect and live in all places in the country and be able to work and function as we do in the city. I think this issue of collaboration is very important, because without that, it's not really going to happen.

That's why a lot of people in rural areas feel frustrated; it's because they can't necessarily work from anywhere in the country. They still have to move and they still have to go for jobs that require technical expertise and computers.

I thank you for that.

Mr. O'Hearn, I want to get your comments on the proposed legislation in Bill C-32. One of the issues, and it's a very contentious issue, is TPMs and digital rights. I want to get your thoughts about the fact that the current legislation as it exists is very strict about circumventing digital locks. What are your thoughts on that?

[Michael O'Hearn, Director, University of Ottawa Press, Association of Canadian Publishers]

Thank you, Mr. Chair.

The Association of Canadian Publishers represents the interests of 125 Canadian-owned English language book publishers from across the country. It provides advocacy; promotes professional development; and fosters collaboration, most notably, over the past two years, in the production of digital content.

The transformation of publishing processes from traditional to digital is well advanced in editing, design, typesetting, printing, order processing, metadata management, and e-book production, but we are still at the early stages in developing e-book pricing models and in digital marketing of both printed books and e-books.

ACP has several goals in this digital environment, and I will enumerate and describe four of them here.

The first is to maximize the revenue potential of e-books.

Canadian publishers have eagerly embraced opportunities to convert their content into digital format, particularly with the growing popularity of e-readers for general interest and even academic reading. Dozens of Canadian publishers have already produced marketable works in the early stages of this e-book phenomenon, and many more are now engaged in this market. The challenge now is to move from the conversion of content into digital files to the creation of content in digital format. As this new revenue stream opens up for publishers around the world, it's vital that Canadian publishers be able to take full advantage of it.

The second goal is to maximize the potential of digital technology in raising awareness of Canadian books in print, digital, and all other formats. Traditional ways of selling books are becoming less effective, independent bookstores are closing down across the country, newspapers are dropping or sharply curtailing their book review sections, and our national book chain is further reducing the space it devotes to books relative to other merchandise categories. And also, e-books tend to cost much less than traditional paper books.

At the same time, technology is creating new ways of promoting and selling books. Online retailers such as Amazon carry a much wider inventory than traditional stores; blogging offers up all the critical opinion and debate of newspaper reviews; social networking functions as word-of-mouth publicity; publishers' and authors' websites can generate attention for Canadian books and facilitate sales; and a new portal currently in development, called Canadian Bookshelf, will make Canadian-authored titles from all publishers much more discoverable on the web, much easier for teachers to integrate into their libraries and course materials, and more accessible for any reader anywhere in the world.

This wholesale change in the way the public learns about books, seeks them out, and acquires them is transforming the business practices of the book industry, and Canadian publishers must be ready and able to exploit these opportunities.

The third goal is to participate in the development of new business models for book publishing and distribution. With the advent of the digital era, retailers and publishers are throwing out old pricing and discount structures, rewriting contracts, and inventing new ways of doing business. We wish to seize this opportunity to shape our market environment before larger, foreign-based companies do it for us. We must have the capacity to experiment with new structures that reflect Canadian realities and benefit Canadian authors, publishers, and readers.

A fourth objective for the ACP is to increase the presence of Canadian books in Canadian schools. In the past 15 years we've seen a decline of investment in school libraries as well as a decline in the proportion of Canadian-published books in these diminished collections. Our children need to hear Canadian stories, told in Canadian voices, to learn the history and culture of their own country and to understand the issues that shape their own communities. New technology is allowing us to promote Canadian books to this market, and we must make the most of this opportunity.

Looking at the role of government, we feel that we can see perhaps three strategies that we certainly would support. The first is to protect the value of intellectual property assets with solid copyright legislation. As many of you know, many Canadian publishers are worried about expanding the definition of “fair dealing” to include education, as is proposed in Bill C-32, and we look forward to working with government in the months ahead to ensure that Canadians--as consumers, as creators, and as producers--have a better understanding of the role of copyright in all aspects of their lives and in Canada's place in the digital world.

The second strategy or support that could come from government is the support of risk. I think the fast pace of change in the digital environment requires bold initiatives, willingness to experiment, and ability to learn from all outcomes, good or bad. The stakes are high, and the financial resources in a small business or small-margin industry are very limited. New solutions are required for the challenges of new formats and new business models. We believe that public investment programs must be flexible enough and strategic enough to support the risks that small businesses must take on in finding and building these new solutions.

Finally, we could certainly see government helping to facilitate access to capital, specifically through more broadly based funding programs, links to private investment, perhaps a loan guarantee program, and a federal tax credit for digital and print books.

Business of the House

[John Baird, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, today we are debating the NDP opposition motion.

Pursuant to any order adopted by the House earlier today, the vote on that opposition motion will take place on Tuesday, November 16 at the end of government orders.

Tomorrow the House will have the occasion to debate at second reading Bill C-32, Copyright Modernization Act, and the backup bill, should debate conclude at second reading, will be Bill S-9, Tackling Auto Theft and Property Crime Act, which I know is a key priority of the Minister of Justice and Attorney General of Canada.

Next week, as the member opposite said, is a constituency week. I encourage all members to remember and recognize the sacrifices made by the men and women of our armed forces, on November 11.

When we return on Monday, November 15, we will call a number of bills, including Bill C-3, Gender Equity in Indian Registration Act, Bill C-31, Eliminating Entitlements for Prisoners Act, Bill C-35, Cracking Down on Crooked Consultants Act, Bill C-20, An Action Plan for the National Capital Commission, Bill C-28, Fighting Internet and Wireless Spam Act, Bill C-22, Protecting Children from Online Sexual Exploitation Act and Bill C-48, Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. We would also consider calling other bills that may have returned from committee by the time we return.

Thursday, November 18, shall be the next allotted day.

In closing, I wish all members a productive constituency week.

Copyright

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

Mr. Speaker, I am proud to rise in the House and present a petition brought forward by many people across Canada who are concerned about the government's very unbalanced approach to copyright, particularly its provisions on digital locks, the technological protection measures.

It is one thing to have technological protection measures on copyrighted works to ensure they are not stolen or pirated, but to put technological protection measures in place to erase the rights that Canadians would otherwise be able to enjoy would interfere with the rights that Canadians have, rights that are defined under Canadian parliamentary tradition. Serious questions are being raised about its effect on education and the development of further arts.

Many of these petitioners are concerned that what will end up happening is the locking down of content that Canadians have paid for.

I would like to present this petition and call upon the government to recognize that we need a balanced approach on the digital lock provisions under Bill C-32.

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

Mr. Speaker, I will say at the outset that I look forward to the member's support for Bill C-32. As somebody who wants to see the arts, culture and creative sector in Canada succeed, she knows that we need to modernize Canada's Copyright Act. I hope the member is going to support Bill C-32, a balanced modernization of the Copyright Act.

With respect to the copying levy, as she puts it, I think my party has taken a position that is very principled, one that suggests we are going to stand up for Canadian consumers. I know the Bloc does not understand what I am saying on this, so I am going to try to speak to it in a manner whereby it is well understood.

Thirty years ago when the transition was first made from vinyl records to cassette tapes, people often made copies on cassette tapes. Cassette tapes could be used for one thing and one thing only: audio recording. There was a system put in place whereby people who made copies of audio recordings paid a small fee, a tax, on the cassette tapes and that fee went to a collective. Many people did not even know they were paying it. I have a problem with that because most people did not know they were paying this tax to begin with, but it did go to a collective.

As technology improved, people could write onto CDs. CDs, unlike cassette tapes, could also be used with computers, for storage of information, quite a bit more storage actually, and they could also be used to store photos. The connection between audio recordings and CDs started to get stretched, but there was a levy, or a tax, placed on blank CDs for all Canadians. People did not pay it in the United States or in a lot of competing jurisdictions, but Canadians were forced to pay it here. A lot of Canadians did not know that.

The device I have on my hip is a telephone, but I can surf the Internet, send emails and take pictures and video with it. Unfortunately, perhaps I could also copy a song onto it. What the Bloc and the NDP propose is that we put an additional tax on devices like this, even Canadian-made devices like the one I am proud to own, which is made by a company in Waterloo. That does not make any sense. Nobody agrees that this makes any sense.

I suggest that I accompany the member to her riding and ask her constituents these simple questions: Are they prepared to pay more money for their iPod, laptop, cell phone or home computer? Are they prepared to pay more money which will go to a collective, which will come up with a formula to redistribute money? Or would they rather have a system that works, a market-based system? That is what Bill C-32 does. It re-establishes the market.

The member was in committee when she heard representatives of the Canadian recording industry say, “You want to give us pennies when what we really need is a market system that works, one that allows us to get paid for the music and albums we are producing”. That is what Bill C-32 delivers and the member should support it.

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

Mr. Speaker, thank you for allowing me to come back with a new question for the Minister of Canadian Heritage and Official Languages.

On June 4, I asked a question about Bill C-32, introduced by the Minister of Industry on June 2. He answered my question himself. However, I was not at all satisfied with the answer, which made no sense. I will repeat my question and someone on the other side of the House will certainly be able to answer it. Here it is:

...there is no monetary compensation for artists in this bill. [In Bill C-32, there is no monetary compensation and previous levies have been taken out.] Sales of music CDs are in free fall and artists' revenues are slowly drying up. However, the appetite for music has not wavered [people have not stopped listening, and neither have I] and makers of MP3 players are still raking in huge profits. ADISQ, UDA [l'Union des artistes], the Canadian Private Copying Collective and even the Union des consommateurs are calling for a levy on digital music players [l'Union des consommateurs is an influential group].

Why is the government denying creators their fair remuneration?

Why has Bill C-32 eliminated all sources of compensation?

There are none left. The private copying levy—I will come back to that in a moment—amounts to $180 billion paid to artists throughout Canada and Quebec over the past 15 years.

The Minister of Industry replied:

We want to help artists, but we also want to help consumers.

This bill is about copyright and the Minister of Industry replies that he wants to help consumers. After that, we saw him go off in all directions to help consumers. The Union des consommateurs does not support Bill C-32, but does support the private copying levy.

I would like to take a moment to explain what that kind of system involves. Artists receive levies from the sale of blank cassettes and CDs. Private copy levies are already in the act. Every time consumers buy a blank cassette or CD, they pay 29¢ to a collective society that redistributes the money to artists according to a complex but fair formula. Artists receive their fair share, which enables them to keep creating. Many artists go for months without earning any income because they are busy creating.

The Union des consommateurs agrees with the system and, in its September 2009 brief, suggested the following:

We therefore suggest extending Part VIII of the Copyright Act [the part that modernizes private copying] to devices such as digital audio recorders, digital video recorders including Tivo and other decoders with integrated hard drives, telephones with digital-capable memories, and DVDs.

That text appears on page 21 of the Union des consommateurs September 2009 brief.

Copyright Modernization Act

[Glenn Thibeault, NDP, Sudbury, ON]

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

I, for one, am a strong advocate of reforming Canada's copyright regulations in order to modernize them and ultimately align them with the realities of the 21st century. Yet, despite my belief that Canada is in dire need of a modernized, intellectual property rights regime, the bill fails to realistically address what is needed.

The government has 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.

The first thing we need to know about creating balanced copyright is that we need to engage all the players. Bill C-61, the government's initial attempt at reforming copyright law in Canada was legislation that was so badly constructed it had to be dropped as soon as it was announced. The Conservatives were forced back to the drawing board, so here we are, after another two years of waiting. Unfortunately, they still have not got the message. The lack of thorough consultation has left major questions about the impacts of the bill.

Specifically, whether the bill will achieve the intended objectives is a subject of debate among the various stakeholders affected by copyright reform, including authors, artists, musicians, record labels, book publishers, collective societies, libraries, museums, school associations, software developers, retailers and consumers.

The lack of thorough consultation with independent stakeholders, such as those mentioned above, is troubling, considering the same problem plagued the bill's predecessor. It all seems to me that there needs to be a consensus-building process which takes into account the concerns of all stakeholders in order to wholly legitimatize the regulatory framework being proposed.

On a different note, it is my opinion that the scope of the bill strongly misses the mark through its heightened focus on individual consumers as opposed to going after the more heinous commercial pirates who profit monetarily off the intellectual property of others.

There are two key problems with the Conservative approach to copyright. The first problem is that the rights that are offered in terms of the fair dealing, mashup and parity exemptions can be overridden by the heavy, legal protections being put in place by digital locks.

Under Bill C-32, it is illegal to break a digital lock, even if that lock prevents us from accessing material that we would otherwise be legally entitled to access. In fact, it treats breaking of digital locks for personal use the same as if the lock were being broken for commercial counterfeit.

We oppose the criminalization of consumers, which this aspect of Bill C-32 represents. The government needs to re-evaluate its stance on copyright reform in order to properly address the current realities of the 21st century. Criminalizing hundreds of thousands of individual consumers for simply digitizing their music for personal consumption fails in this regard. We need to focus on commercial piracy, not individual consumption.

I happen to have a seven-year-old daughter who is a huge Hannah Montana and Jonas Brothers fan. We must buy as many Jonas Brothers and Hannah Montana movies and music as we possibly can in my household. I can rhyme off Hannah Montana songs. I am sure many other MPs who have young children could do the same thing. I will not sing one for the House. I do not want to embarrass myself that badly because I am not a great singer. My daughter has a CD collection but we cannot find CD players, so we need to put those on to our MP3 player. Under the bill, my seven-year-old daughter is now breaking the law.

We need to ensure that we are not criminalizing the consumers. The approach the Conservative government is taking goes far beyond the norms adopted by many of the World Intellectual Property Organization countries, or WIPO. In terms of copyright reform, we have been consistent. We support the fundamental principle of remunerating creators for their content. We have consistently called on the government to bring the WIPO treaty into the House to be ratified. If the government had taken this advice, it would have alleviated a great deal of international pressure and given us the space to create a truly made in Canada approach to digital copyright issues.

The Conservatives had five years to address issues in WIPO, and stalled on the WIPO ratification. Instead, their first run at copyright was constructed entirely behind closed doors and read like a wish list for the U.S. corporate lobby.

The second serious problem with the bill is that a number of previous revenue streams for artist organizations appear to be undermined through exemptions and changes. The most notable of these is the government's decision not to extend the private copying levy on CDs to music-playing devices. This fails to address the reality that more and more consumers are choosing to purchase intellectual property through non-traditional means such as digital music files. The levy worked on cassettes. It worked on writable CDs. However, if it is not updated for MP3 players, the levy will die.

The New Democrats put forward Bill C-499 to update the levy on devices marketed specifically as music players and recorders. The Conservatives have misrepresented this levy. They have used it as a straw man for their mailings attacks in our ridings. They have made up figures for the cost of the levy and have denounced copyright licensing as a killer tax.

Let us see what the national media have to say about this attack on the remuneration of artists. The Edmonton Journal said that the NDP offered a perfectly reasonable compromise, but that the industry minister misrepresented its contents on a bill that is thoughtful and upholds the basic Canadian values of straight dealing.

The National Post was even blunter, saying:

...the government's nonsensical, “Boo! Hiss! No new taxes!” response … is just dumb...

This is the National Post we are talking about, definitely not a progressive bastion that routinely calls for more expansive powers in taxation and regulation. Even this newspaper has shown a willingness to confront the real issues. Why has the government not come to its senses on this matter?

The widespread use of iPods, iPads, and MP3 players, as well as the emergence of products like Kindle, serves as an excellent example of the changing nature of consumption in a technology-driven environment. We must address this gap to ensure that Canada's intellectual property regime is appropriate for the ever-changing technological landscape.

The most obvious criticism that can be made of Bill C-32 is that it fails to address the realities presented to us by 21st-century technology. The fact is that no amount of legislation or legal action will force consumers to return to the business models of the 1990s. The emergence of the digital economy has changed the dynamics of intellectual property. The digital economy is not going away. We need to recognize this. We are attempting to rectify 21st-century problems with 20th-century solutions. Let us be clear. An intellectual property regime designed for the dynamics of the 1990s is not the best means for dealing with the issues of commercial piracy, which is really where our energies need to be focused.

Over the past 20-odd years, technological innovation has led to massive and abrupt changes in the way Canadians live their daily lives. Whether it is the way we get the news, or the way we do our banking, or pay our bills, technology has dramatically altered our consumption habits. Instituting a regulatory regime that fails to observe the significance of the transition to an information technology and e-commerce paradigm will only lead to further failure in distinguishing between commercial piracy and legitimate consumer uses.

Nowhere is this folly more clear than in the United States, with its digital millennium copyright act. The U.S. entertainment industry has used legislation in courts to lock down content and criminalize consumers. The result has been a scorched earth policy waged by the recording industry of America against its own consumers. After more than 35,000 lawsuits against kids, single moms, and even dead people, the digital genie has not been put back in the bottle. The market has simply moved on.

Does this mean that digital technology has trumped the traditional right of creators to be compensated? Certainly not. New markets and new models are emerging. The difficulty is to find the best way to update copyright to meet these challenges. We have a unique opportunity to develop legislation that looks forward rather than back. That is why it was unfortunate to hear the Minister of Canadian Heritage denounce citizens' legitimate questions about the bill as digital extremism.

If copyright reform is to succeed, the government must move beyond the rhetoric of a self-defeating culture war. The choice is really about whether we support regressive or progressive copyright. Regressive copyright tries to limit, control, or punish users of creative works. Regressive copyright is self-defeating, because the public will ultimately find ways to access these works.

Progressive copyright, on the other hand, is based on two clear principles: remuneration and access. The digital age has shown us that consumers of artistic works want to be able to access these works. The Internet is not a threat; it is an amazing distribution format. As legislators, artists, and technological innovators, we need to find the monetizing streams in this new distributing culture.

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

There is a public interest in the access and dissemination of works and a public interest in obtaining a just reward for the creator.

The New Democratic Party's position on copyright is based on the principles of compensation and access. Artists need to be paid for their work, and consumers should be able to access these works with a minimum of restrictions.

The New Democrat position is that we support collective licensing and fair access to educational materials. For example, under the bill, digital lessons for long-distance learning must be destroyed within 30 days of the completion of a course. This would treat students in digital learning environments as second-class citizens and would undermine new learning opportunities.

Specifically, under Bill C-32, students who take long-distance courses would be forced to destroy their class notes after 30 days, and teachers would be forced to destroy their on-line class plans after every semester. This is the digital equivalent of telling universities to burn their textbooks at the end of every session.

What kind of government would force students engaged in digital learning to burn their class notes? No writer gets compensated and no student benefits. This provision shows just how badly out of whack the government is when it comes to understanding the importance of digital education.

In my great riding of Sudbury, we have three fantastic post-secondary institutions: Laurentian University, Cambrian College, and Collège Boréal. All three of these post-secondary institutions offer distance education and distance learning. We want to ensure that this continues, because it is a great way for students in the vastness of northern Ontario to get the education they need.

All this is particularly troubling for me as an MP from northern Ontario. Our country contains many remote areas, and we should be encouraging distance and online education, since course offerings of this type are often the only way for Canada's rural residents to gain access to quality higher education.

We should not be discouraging these types of educational regimes with unduly burdensome regulations prescribing how long a digital lesson can be held.

It is therefore my hope that all parties will be able to reconcile their differences so that we can provide Canadian artists, performers, writers, and the cultural community as a whole with the intellectual property rights protection they deserve, while ensuring that the new regulatory regime respects the changing nature of individual consumption in the 21st century.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Mr. Speaker, once again, I thank my colleague, who raised the issue of education with good reason. That is one of the fundamental elements of Bill C-32. I would say that there is no definite answer because we do not yet know the bill's scope with respect to education. What does “fair” mean? As I said in my speech, we need to figure out what the word “fair” means, what its parameters are and what it covers. What is included in the exemption for education and what is not?

We have to find a balance. We want it to be easy for students to access and easy for teachers to prepare, but we also want our creators to get paid. As I said earlier, would teachers—both of my parents were teachers—agree to work without being paid? No, because teachers have to earn a living. So do authors and publishers. Once again, we have to find a balance here, a balance that the bill does not provide. We hope to find that balance in committee.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Mr. Speaker, I am very pleased to have this opportunity to speak to Bill C-32, An Act to amend the Copyright Act.

I want to begin by saying that, as everyone knows, we have been waiting for this bill for a long time. We need this bill, we want it and we have been waiting for it. The government was elected two years ago, and we are just now beginning to debate this bill at second reading.

Nevertheless, as they say, “better late than never”. Now is our chance to debate it, and we must do so. Over the past few years, the Liberal Party and the Conservative Party have tried to introduce bills. Once again, this one comes from the Conservative government. It was a long time coming, but it is here now, and we will debate it.

We need this debate because we have to modernize the Copyright Act. I am sure everyone will agree that is necessary. This legislation must be modernized and adapted to the reality of the century we live in, the 21st century.

We need legislation that takes into account the technological changes that have already happened and will continue to happen at a dizzying pace. We need only consider everything that has happened over the past 10 years and all of the new products that have come to market. For example, consider the role of the iPod, the iPad and all of the other new devices that did not exist 10 or 15 years ago. Today, everyone uses these devices to listen to music and watch movies. We have to take into account the extraordinary technological changes in terms of platforms, production and dissemination.

That is why we need legislation that reflects these changes. We also need legislation that protects the rights of creators and artists. That has become even more important in the digital age now that everything happens so quickly.

It is just as clear that we need legislation that sends an unmistakable message to the international community, legislation that shows Canada takes copyright seriously and promotes and protects those rights. That is the most important part of this.

Unfortunately, we are dragging our feet. We are lagging behind. In some ways, we are looked down on by the international community. All too often, we are being singled out as a bad example. That needs to change.

The law needs to be modernized for all of the reasons I listed, but also to allow us to ratify certain international treaties that are of significant importance to us and our allies.

In preparation for the debates surrounding the passing of this bill, I decided to travel across Canada to meet and talk with those directly or indirectly affected by this important issue. Other members did the same. I am thinking about my colleagues from the Standing Committee on Canadian Heritage and the Standing Committee on Industry, Science and Technology as well as my colleague and our industry critic, the member for Westmount—Ville-Marie, who has done incredible work on this issue.

As I was saying, I travelled from one end of Canada to the other in order to meet with the people concerned by this significant bill. I met people in Halifax, Montreal, Winnipeg, Toronto, Regina, all over, in fact. I could list them all, but it would take too long because there are more than 100 groups.

I will simply say that I met with people from the film, television, production and music industries. These are artists, musicians, Internet service providers and others. Over the past several months, I have had extremely productive and worthwhile discussions with people from all of the provinces, except Alberta, where I will be next week to discuss this very important bill.

We need to talk in a fair and balanced manner about this copyright modernization bill. We have to find a delicate balance between the important needs of creators and the needs of consumers, which is not easy. Unfortunately, numerous critics are already speaking out against this bill. They come from everywhere—Quebec, Ontario, British Columbia.

Creators and copyright owners are afraid that this bill will undermine their current rights. That is one fundamental aspect that we need to examine closely. While the bill is a step in the right direction in some cases, is there not a chance that it will undermine or eliminate some existing, protected rights in other cases?

That is an absolutely fundamental issue that must be addressed, and we will take the time to do so. And just because the government took so long to introduce this bill, that does not mean we will examine it hastily and without taking a step back. That would be irresponsible on our part. On the contrary, we will take the time to consult all the stakeholders involved in order to come up with a bill that is fair and balanced and that really protects copyright owners. Thus, we will meet with several people with whom members of the Liberal caucus have already met, and others with whom we have not yet had the opportunity to meet. This could all be done in committee.

Copyright is a vast, complex and rapidly changing subject. On this side of the House, we understand that it has a real impact on artists, writers, poets, filmmakers and musicians, as well as on video game makers, photographers, merchants, producers, Internet service providers and of course consumers. Copyright has an impact on many people and industries, and we must take that into account. We also need to make sure we have long-term legislation that will not need to be replaced tomorrow, since it is so hard to reach a consensus. Furthermore, the proposed legislation must be as neutral as possible in terms of technology.

Clearly, finding common ground when so many different parties are involved will demand some compromises, but they must be fair and balanced. In order to achieve this, we need to have frank, open discussions from beginning to end.

At this time, I would like to mention some of the issues that were raised during my cross-country visits and some points that were raised during meetings here in Ottawa with stakeholders from the cultural community and from industry.

I want to raise some of the important concerns and questions that we should be debating, especially with regard to digital locks. For example, should these famous digital locks prevail over all other rights to make copies? That is the question because Bill C-32 includes new rights that authorize Canadians to make copies for personal reasons, including format shifting, time shifting and back-ups. Nonetheless, the new provisions in the bill having to do with digital locks take precedence over these rights. In other words, to be clear, under the new legislation, someone who buys a CD on which a company has installed a digital lock cannot get around this lock in order to transfer the content of the CD to another format without breaking the law.

I know that is a bit technical, but it is a fundamental aspect of the bill and we must debate it. It is also extremely contentious and was highly contested when the Conservatives introduced their other bill, Bill C-61. We have already heard many protests and discussions on this aspect of the bill. It is clear that this point needs to undergo further review, and we believe that amendments will need to be made in committee.

The second point has to do with education. Bill C-32 contains new exemptions that allow teachers and teaching institutions to make copies of works for educational purposes without copyright infringement. This blanket exemption from fair dealing rules is facing growing opposition from the various cultural communities.

Given the comprehensive nature of fair dealing, writers and publishers, for example, believe that this new exemption will permit teachers and educational institutions to make copies of their works at will and then give them to their students. Will that happen? Is that really what will happen? We will have to see and study the bill, but I can say that many people believe that teachers and educational institutions should be required to pay royalties to creators for the use of their works. I find this to be a fair and consistent position.

Let us go a little farther. How should this exemption be applied? Should a teacher be able to claim that a copy of an unedited version of a movie was made and shown to a class for educational purposes and not pay a royalty? We have to ask the question. Is that the case?

We realize that it is important to modernize the act so that teachers can apply it in the digital age. But we also believe that authors and creators are entitled to be compensated for the use of their works and for what they have created. That is clear. We will want to discuss this in committee as well.

Similarly, we will have to clearly define what constitutes “fair” dealing, as it is used in the bill. I ask the question and we will ask it in committee. What are the limits and the parameters that apply to the term “fair”? We must answer this question.

The third point has to do with mashups, or user-generated content. Clause 22 of the bill provides for an exception for mashups and user-generated content.

What is a mashup? A mashup is, for example, a personal video produced by combining excerpts from films and sound recordings and then posted on YouTube or a similar site. That happens.

In our opinion, the wording of this clause is far too broad. With this rule, someone could post the full version of a movie on YouTube. All they would have to do is add an excerpt at the beginning or the end and call the video a mashup. That seems a bit too broad. We want to define this and debate it. This point will also have to be carefully examined in committee.

The fourth point has to do with the statutory damages in the bill. Clause 38.1 of the bill provides for damages of between $100 and $5,000 for all copyright infringements for non-commercial purposes. Members will understand that we have some concerns here. It seems logical to us that damages related to copyright infringement should be in proportion to the seriousness of the infringement. That is also something that will have to be analyzed and studied in committee.

The bill also leaves a few things out, such as the public display of art, for example. Currently, if an artist displays a piece of art in a public space for reasons other than to sell it, they receive compensation. However, if the work was created before 1988, the artist does not receive compensation; they do not receive a penny. We need to use this opportunity to fix this situation, which we find to be discriminatory.

Another thing that has been forgotten is the resale of artwork, or resale right. Across Europe, artists are compensated when their works are sold and resold. Everyone knows that original art increases in value over time. Artists become more and more well known and the value of their works increases. Artists feel, and rightly so, that part of this increase in worth should come to them upon resale. It already exists in Europe.

When this is studied in committee, we would like to look at what has happened in Europe to see how Canadian artists could be more fairly and equitably compensated for their work. We believe that our artists' efforts are no less valuable that those of their European counterparts.

There are many other points that I would like to raise, but I do not have the time. However, I will definitely raise them in committee. We just need to remember that this bill has some good points but also some flaws and, in certain cases, leaves things out altogether. We will work hard to improve it.

The House resumed from November 2 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.

[Mario Silva, Liberal, Davenport, ON]

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

There is probably no bill in this House that has occupied more parliamentarians' time than this one, not just in this particular session of Parliament but in previous sessions of Parliament. We have debated and debated this issue but we cannot seem to get it right. There have been several bills in the past, introduced in previous sessions of Parliament.

We have read the bill and we have serious concerns with it. However, we think it merits going forward to committee where it can have the proper study, the proper hearings and we can hear from the stakeholders groups and hear their concerns. We have already heard mixed reviews of the bill from different groups.

We want to see how we can make this bill a better bill for all Canadians. Canadian artists and consumers across the country are demanding action on this very important issue and they are looking to all of us for leadership. It is unfortunate that we have taken so long to get this legislation on track.

In Canada, we are in midst of a transition to a digital economy, which has a profound effect on our cultural industries. Our aging copyright laws have received international criticism and the longer we lag behind global best practices the more Canadian artists and Canadian consumers lose out.

We believe it is time for Canada to implement fair and balanced copyright modernization in order to balance the needs of creators and consumers.

We in the Liberal Party feel there are some serious challenges with this bill but that it merits going forward for further study at committee. We want to ensure that digital lock provisions allow Canadians who have legitimately purchased a CD, a DVD or other products have the ability to transfer their purchase onto their iPod or make a personal backup copy on their computer, so long as they are not doing so for the purpose of the sale or transfer to others.

Many artists, writers and creators have also expressed deep concerns about issues like the new education provisions, mashups, statutory damages and compensation for resale rights. While we have deep reservations, we will be supporting this bill going to committee to hopefully address some of the concerns that I have raised and that other members of this House have raised.

We need to take this issue extremely seriously because there are artists, stakeholders and people in our society who are looking to us for leadership. We need to take their concerns seriously and address them as soon as possible.

We are supporting copyright modernization to protect the works and intellectual property of Canadian artists and creators. We want to see Canada's laws updated as soon as possible.

Several areas of concern have been raised and I think it is important that I also raise them to have them on the record so we can figure out how to deal with some of these issues. One issue concerns whether digital locks should trump all other rights for copy. Bill C-32 introduces new rights for Canadians to make copies for personal use, such as format shifting, transferring a CD to an iPod; time shifting, recording a show for later viewing; and making back-up copies.

However, in Bill C-32 the new digital lock provisions, the technological protection measures, TPMs, override these new rights. In other words, under this new law, if a company puts a digital lock on a CD, the people buying the CD will not be able to circumvent the law to put the music onto their iPod without breaking the law. This exact issue was a highly controversial change when Bill C-61, the Conservatives previous copyright bill, was introduced.

We are in a constantly moving, dynamic digital economy and we have a hard time catching up with all the changes. At times we question whether we should have no legislation or deeply flawed legislation. I am one of those who believes that we should have some legislation and that hopefully it will not be deeply flawed once it goes to the committee stage.

However, we need some type of protection because having nothing at the moment is embarrassing to Canada and it is not looking after the best interests of Canadians from coast to coast.

Passionate consumer concerns have been expressed with regard to the digital lock provisions and media stories are reinforcing the belief that the Conservatives are preventing Canadians from transferring their CDs onto their iPods. Canadians believe that when they buy a CD, they are buying the right to listen to that music in the format they choose, whether it is on their CD player, their iPod or computer.

There is an education component to this bill that is also of great concern. The new education exemptions for copying means that teachers and educational institutions could now make copies of work for some educational purpose and not infringe on copyright.

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

There is growing opposition to the broad fair dealing exemption. Writers and publishing groups in particular are very opposed. Because fair dealing is so broad but what is fair, the writers and publishing groups believe the new exemption will give teachers and educational institutions a blank cheque to make copies of their work to give to their students. They believe teachers and educational institutions should have to compensate creators for their work. In particular, why should private, commercial educational institutions be permitted to disseminate works for educational purposes without compensating copyright? This is not an easy issue. It is very hard to please both groups on this important contentious issue.

Groups, such as the Canadian Association of Student Associations, CASA, and the Association of Universities and Colleges of Canada, AUCC, have advocated for the education fair dealing exemption. Educators, whether they are post-secondary or K-12, have traditionally tried to make free copies of works for students claiming that they were infringing copyright under the fair dealing exemption of private research and study. The dissemination of works for students, however, stretches the concept of private research and study.

Furthermore, some teachers want to be innovative. An example is a teacher wanting to show a one minute clip of a movie to make a point but he or she cannot now without paying high copyright fees.

Essentially, CASA and the AUCC want to have a clearer delineation of fair dealing to allow them some clear and reasonable freedoms to use copyrighted material in certain circumstances. CASA and AUCC, however, are also pursuing this route to avoid expensive fees and course packs that charge up to $45 per person for copyrighted material for classes.

We can see that a lot of groups are depending on us to get this legislation right. We want to reward our artists and our artist community, not punish them. We also do not want to punish students.

I realize that these are very complex issues but it is time that we collectively work together to ensure we get this one right.

This fair dealing change, however, could have profound effects on the creation of textbooks, particularly in Quebec. Textbooks are specially designed in Quebec and, given the small size of the education market, copyright fees are quite high in order to recoup expenses. Allowing the fair dealing copying of even sections of textbooks in Quebec or in other parts of the country would significantly reduce the compensation authors receive.

Further, how far can exemptions be applied? Could a teacher make a copy of an entire movie and show it in class and not pay copyright fees based on the premise of education?

It was so much easier once upon a time when teachers could show movies without any issues of breaking the copyright law and so forth, but we have moved into such a new digital age that we have to figure out how we can be innovative and at the same time be fair.

The mashup section, clause 22 of the bill, creates an exception for mashups and user-generated content. An example of the mashup is a personal movie produced using movie and music clips combined with personal video and then posted on YouTube, for example. The clause, however, is too broadly written.

Under this rule, an individual can post an entire movie on YouTube and as long as the person adds a small inserted clip at the beginning or the end, he or she can call the video a mashup. We believe the language in Bill C-32 must be tightened to ensure that mashup exemptions cannot unexpectedly create a loophole for further copyright infringements.

There is also the issue of statutory damages. Clause 38.1 of Bill C-32 defines new statutory damages of $100 to $5,000 for all non-commercial infringements of copyright. Many stakeholders have expressed concerns about this section and believe applied statutory damages must be commensurate with the severity of the infringement.

As well, there is public exhibition of art. Currently, paragraph 3(1)(g) of the Copyright Act defines the right to present at a public exhibition an artistic work created only after June 7, 1988. The Liberal Party feels this is discriminatory to artists who created work before 1988, and we want to amend this part of the legislation.

There is the resale of art. Throughout Europe, 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 increasing value should be returned to them upon resale of their works. In committee we wish to explore this European model.

Currently, copyright holders charge broadcasters for format shifting their works. A simple example of this is when a radio station purchases a song for broadcast. The current rules require the radio station to pay every time it plays the song but also when it transfers the song onto its computer server. Broadcasters want to simply pay once, whenever they play the song, and not pay again for the format shift being discussed.

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

Everyone can see that there are a lot of issues to be dealt with in committee, and we wish committee members all the best because this has been an ongoing issue as long as I have been in Parliament. We shall see if it actually gets resolved by the time this session is over. I certainly wish them all the best.

The stakeholder reaction, as I mentioned earlier, has been mixed. Michael Geist and consumer advocates oppose the bill, as the digital law provisions are considered overly restricting to Canadians who wish to download their CDs onto their iPods.

Some arts groups, such as the Canadian Film and Television Production Association, have supported Bill C-32 as a good step forward, but others, such as the Alliance of Canadian Cinema, Television and Radio Artists, ACTRA, and other Quebec arts groups have opposed Bill C-32 because it lacks a levy, inserts the new education exemption and is not strong enough on issues such as notice and mashups.

Large business groups like the chambers of commerce, the Entertainment Software Association and the Canadian Council of Chief Executives have expressed support for the bill.

Other information technology business groups such as Google, Bell, Rogers and others have expressed support for the bill's direction, but have expressed concerns about the digital lock provisions.

Several education stakeholders, like the Canadian Alliance of Student Associations and the Canadian Association of University Teachers, have also expressed support for the education amendments but also concern with the digital lock provisions.

The Writers Guild and the Association of Canadian Publishers strongly oppose the new exemptions for education.

The Canadian Artists' Representation and many other arts groups are opposed to many parts of Bill C-32 and would especially like to have the resale right included in the new bill.

We have a bill that is quite complex. I will not use the word “mess”, although some others might say it is a mess, but we have been in this situation for a very long time. Certainly it has been debated over the last 10 years through various sittings of Parliament. With what the Conservative government is now bringing forward, different pieces of legislation have been changed. We had elections and then we had prorogation. All of that has killed past bills. A new bill has been introduced at this time and we do not know when an election is going to happen, but we will see what happens to the bill. If it actually makes it beyond the election, that would be great, but I have some reservations. I am hoping the committee will have an opportunity to look at these different issues and address them.

Canadians from coast to coast are looking for leadership from all of us. I do not want to see this as a partisan issue. We need to get copyright right for all Canadians. It is of great value for all of us.

So many people are depending on us to make the right decision, so I am hoping there will be co-operation at the committee. I am hoping we can all get together to work on this very important issue, bring it back to the House, have a final vote and then move it to the other chamber.

I cannot say how important this legislation is to all of us, and I am hoping that in the spirit of co-operation and with the limited space of a minority Parliament, we will have the bill passed before the next election.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am very pleased to rise today to speak to Bill C-32. I listened to a lot of very good presentations today regarding this very important bill.

At the outset I would like to say, following up on the previous member who spoke and the NDP critic who spoke to the bill this morning, that members of the NDP will certainly be supporting this bill going to committee. We support it in principle. It is a outstanding issue that has to be dealt with by Parliament.

In many ways, I hope it follows the route of Bill C-11, the immigration bill, which basically proved to be successful at the end of the day with the help of all four parties in the House. We have the potential to follow that route with this bill. Some of the concerns that were raised today by the NDP critic in debate were responded to by the minister of the government.

It appears to me that there certainly seems to be an interest on the government's part in working with the NDP critic and our party, and I believe, the other parties as well, to try to work out perhaps even an all-party agreement on this legislation. I really do not feel that we are that far apart.

Speaker after speaker has concentrated on really, more or less, the same issues. Some issues were not addressed, but by and large, the same issues came up over and over again. So it is incumbent upon the government in committee to resolve those issues, and perhaps before Christmas, Parliament will have a second successful bill as opposed to having it end up not going anywhere.

The government has certainly had ample experience over the last five years with bills it proposed going nowhere because it is in a minority situation and knows that all it takes is for it to bring forward a bill that the opposition does not agree with and the bill will not be successful. That is really the end of its effort.

I recognize that we have only 20 minutes to discuss this matter and I do not know that it will be sufficient. Nevertheless I want to deal with some of the issues involving Bill C-32.

Canada's technological community has long been calling for a major overhaul of the Copyright Act to bring fair and balanced copyright legislation to this country. The act has not been reviewed since 1997. I think back to those days 13 years ago and realize how the technologies have changed during that period. It is tremendous.

John Manley was the minister and Jean Chrétien was the prime minister in a majority government. How and why the Liberal government of the day, a sort of command style government with an absolute majority, could not get this job done seems a bit surprising to me. Nevertheless it did not do it. That might be indicative of how controversial it actually is and how many players are involved.

I recall a number of years ago, in 2000, when I was involved in putting together Bill 31 in Manitoba, the province's Electronic Commerce and Information Act. That was internal to the government. We had to sit down with four or five government departments that were dealing with electronic issues. The Uniform Law Conference had a template that we could follow. Just trying to get those silos, those departments within a provincial government, onside proved to be fairly difficult, although we did get the job done.

In this case, it goes way beyond the government, because we are dealing with many competing forces within the country itself. The Liberal critic pointed out this morning how substantial this area is in Canada in terms of jobs and employment and the large part of the economy that is involved.

The Conservatives' copyright modernization act seeks to enact long overdue changes that would bring Canada in line with advances in technology and current international standards. At the rate we are going and with the technology changing, we are never going to catch up unless we get this job done now.

The issue is highly complex. It features competing demands from stakeholders and the artistic, academic, business, technology, consumer rights and communities. We have heard conflicting views from a number of them even today. However, it is a top priority and a multi-faceted issue that the government must take on if it wants Canada to be a competitive player in our increasingly technology-reliant world.

When Canada signed onto the World Intellectual Property Organization, or WIPO, Internet treaties in 1997, 13 years ago, it committed then to modernize its copyright legislation. Before Bill C-32, two other attempts were made to enact legislation that would achieve the goal, most notably in 2008 when the Conservative government brought forward Bill C-61 and that bill was met with widespread opposition. It died when Parliament prorogued in 2008.

Bill C-32 is designed to be technology neutral, which is a very good way to deal with it, because if we do not do that we will be dealing with technology referencing typewriters or old technology from many years past. Taken forward to the future, 20 years from now people will not be understanding the type of technology that we are dealing with in the bill right now. So we have gone to a technology-neutral position that applies across a broad range of devices and technologies with a view of ensuring adaptability to a constantly evolving technology environment.

During the summer of 2009, as the minister referenced, Industry Canada held a series of nationwide consultations on copyrights, soliciting input from Canadian consumers, industry experts and content developers. During the consultations, the most discussed and most contentious issue was digital rights management, including the digital locks, which has been talked about by many speakers today, anti-circumvention measures and TPMs, or technological protection measures.

User rights advocates made it clear that they wanted to see the government expand the fair dealing provisions in the Copyright Act and provide more exceptions for consumers. In Canada, fair dealing as defined by the Copyright Act is more restrictive than the fair use provisions in the United States, particularly with regard to education and teaching. It refers to uses of content that are considered valid defences to copyright infringement, such as for purposes of criticism and review, news reporting or educational use.

While user rights appear to have been taken into some consideration in drafting the bill, Bill C-32 is fairly heavily weighted in favour of the rights of content owners. I reference Sony, Hollywood studios and so on and have asked the question about the influence of the Hollywood lobby, the American political lobby on the Canadian government to come up with a solution that they basically approve of.

The Conservatives laugh and say it has taken six years and obviously they are not responding to any pressure because had they responded to pressure they would have done this a long time ago. What matters here is that the American government and American business interests want to see a piece of legislation that fits in with their legislation, because they see this as a continental market. I have explained before that of the 88 countries that have approved the WIPO Internet agreements, only half of them follow the American model. The other half have a lesser approach than the American system of supporting digital locks.

The government tries to bamboozle us by telling us that we have to give industry the digital lock provisions because we are following the United States, following WIPO.

However, half the countries that have approved and ratified these agreements are not following the digital lock procedures the way the Americans are. Let us understand that from the beginning. We do not have to go holus-bolus, cap in hand, following on the trail of the Americans, contrary to what the government would like us to believe.

The government has 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. Of course we agree with that. No party in this House wants to be causing grief to the citizens of Canada. There is no question about that at all.

The copyright modernization bill contains three broad categories of changes that Internet and e-commerce law expert Michael Geist termed sector-specific reforms, compromise provisions, and no-compromise rules regarding the DRMs.

The sector-specific reforms are designed to appeal to a wide cross-section of Canadians and include measures that extend the term of copyright for performers and producers to 50 years from the time of publication of a musical performance. They also create a new "making available" right in accordance with the WIPO treaties. This measure will give copyright owners exclusive control over how their content is made available on the Internet.

It also introduces a mandatory review of the Copyright Act, to take place every five years. It is important to have a mandatory review every five years. Even though the bill itself is technologically neutral, things may change in five years, and it is important that we have the ability to require the government to do a review after that point.

Bill C-32's compromise provisions will formally enshrine commonplace grey-area practices that enable users to record TV programs for later viewing, as long as they do not compile a library of recorded content. That is called time-shifting. I know that some people are not going to be happy with this. There are people who like to use their PVRs to copy programs and want to be able to make copies of those and record them. But they are not going to allow people to compile a library of recorded content.

The provisions regarding transferring songs from CDs to MP3 players, called format-shifting, and making backup copies create new limited exceptions to the fair- dealing provision of the Copyright Act. These include exceptions for educators and exceptions for parody and satire, which Canadian artists have been asking for. Bill C-32's compromise provisions will create an exception for content creators that would enable the circumvention of DRMs for the express purpose of reverse engineering for encryption research, security testing, perceptual disability, and software interoperability.

It would also introduce a new YouTube exception that would allow Canadian users to compile clips of copyrighted works into a remix work, as long as it is not created for commercial purposes.

I also want to point out that no one here today has mentioned that this legislation will also give photographers, for the first time, the same rights as other creators. I listened for that all day long and I did not hear anyone mention it. Photographers should be happy, because for the very first time in the history in Canada they will be given the same rights as other creators.

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

In addition, it creates a carve-out for network locks on cellphones. This is another one that I think is going to be popular. One of our members actually introduced a bill regarding cellphones, but understand that we are talking about network locks on cellphones. Right now we are stuck with a network when we buy a cellphone. The locks are going to be taken away, and Canadians are going to have the right to unlock their phones. I think people are going to be happy with that if they want to switch carriers, as long as they abide by the providers' contract terms when they make the switch.

There is also a reduction of statutory damages from a maximum fine of $20,000 per copyrighted work to a one-time maximum penalty of $5,000 in situations where copyrighted works have been illegally accessed for non-commercial purposes.

The government touts this reduction of penalties as a progressive, positive change. However, if we read Michael Geist's work, he argues that this is not going to be the effect, that it is not going to work, that we are creating legislation that is going to produce a lot of litigation.

Our critic mentioned that artists have better things to do with their time than hire lawyers. Therefore, the bill is going to be good for lawyers. But if we are talking about little artists who are trying to practise their trade, the last thing they are going to want to do is hire lawyers to track down people who are infringing on their copyrights.

Perhaps we have to take another look at the whole issue of the fines. Perhaps we ought not to think that, because we are reducing fines from $20,000 to $5,000, we have solved the problem. Michael Geist, who is a recognized expert in this area, has made a convincing argument that this is not the case.

Finally, the copyright modernization act contains no-compromise provisions that are likely to have a huge impact on the way Canadians obtain, use, and share copyrighted content. These include measures that create powerful new anti-circumvention rights for content owners like Sony and other big companies, as distinct from the creators and the developers, that prevent access to copyrighted works on pain of fines of up to $1 million, or five years in jail. This measure is based directly on the United States' controversial Digital Millennium Copyright Act, the DMCA, and that is one of our criticisms of the bill. The government is slavishly following the American model as opposed to following the 88 countries in the world that are not following the American model, that have separated from the American model, and have gone easier on the digital lock issue.

An immediate result of this provision would be to convince the United States, and particularly its powerful entertainment lobby, that this country is in line with U.S. regulations and is an attractive and secure place to conduct business.

I think that is what it is all about with the Conservative government. It wants to convince the Americans that we are a good, safe market, with the same standards that they have, so that they can come and do business with us. Instead of this, the government should be looking out for our citizens.

The foundational principle of the new bill remains that any time a digital lock is used, whether on books, movies, music, or electronic devices, the lock trumps all rights. So what is the point of giving people all these rights if we simply take them away by making sure that the digital lock trumps all these new rights?

This means that both the existing fair-dealing rights and Bill C-32's new rights all cease to function effectively so long as rights-holders place a digital lock on their content or device. It would also require that, where a digital lock exists, digital copies made for the purposes of self-study self-destruct within five days, and that course materials be destroyed no later than 30 days after the conclusion of a course. What good is that?

We have had speaker after speaker criticize that provision of the bill.

Perhaps I can deal with the remaining points in the question-and-comments period.

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

Madam Speaker, I am not the only member of the New Democratic Party who has indicated we are willing to move the bill to committee so we can look at the problematic areas. My colleague has also indicated that his party was willing to work with it as well.

He also mentioned a coalition, which surprises me. People are getting a little tired of hearing the government side always referring to the coalition. There is no bigger coalition than the Liberals and the Conservatives. The Liberals either vote in favour of what the government does and gives it the majority it needs, or they do not show up to vote. Then they turn around and say that they voted against it, but in the meantime they sent some members out the chamber.

I want to talk about the digital locks. The digital lock provisions in the bill make a mockery of any claims of balance. The government claims to be providing new exemptions and rights, fair dealing of educational uses, reproduction for private purposes, making backup copies, copying rights for the printed disabled and the so-called YouTube mashup provision. If there is a digital lock in place, an individual will be criminalized if he or she tries to use these rights. These sections need to be fix.

Proposed section 41 lays out technological protection measures, which supersede the rights of citizens who would normally be able to enjoy the non-digital realm. Bill C-32 offers rights that the consumer will not be able to exercise.

It is quite important to see what is in the bill and what needs to be changed. The government is creating a two-tier level of rights between digital and non-digital products instead of legal certainty. Canadian citizens will face arbitrary limitations on their legal rights to access.

As I have indicated, the NDP is supportive of moving this bill to committee. The committee will then decide on what amendments to make to it. The seriousness of this is whether or not the Liberals and the Conservatives are willing to work at fixing the problematic areas to ensure that educators, students and some of the artists are not made criminals.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I think people watching at home are very surprised to hear that Bill C-32 would require teachers and students to destroy digital lessons 30 days after the course concludes. That will be a big surprise to a lot of people. In addition, Bill C-32 would require librarians to ensure that intra-library digital loans self-destruct within five days of first use.

Could the member confirm that this is the case with Bill C-32 and does she think that is fair?

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

Madam Speaker, I was really enjoying what my colleague had to say and it is unfortunate that he ran out of time.

I am glad to join in this debate and add my thoughts on an important issue for Canada and for Canadians. The effects of this legislation, if it becomes law, will be felt throughout our economy and society. Therefore, it is important for us to ensure that Bill C-32 lives up to its billing as a balanced Copyright Act.

I am certain that all of us in this place have a desire to get it right this time since it is the third time in five years that Canada has tried to modernize its Copyright Act. Not even the Liberals before that could get it right. It is something we promised to do when we signed on to the WIPO treaties in 1997. Again, WIPO stands for World Intellectual Property Organization. This is an issue with a lot of stakeholders. It might be tempting to look at it as a debate over the rights to one specific item, like music, but that is too simplistic.

Music is a useful example because it shows us many of the ways this legislation will be tested, but there are arts communities, educators, students, corporations, technological innovators, entrepreneurs, a vigorous open source community and nearly every Canadian involved in his or her role as a consumer that need to be considered too. That is not a complete list but it shows us how many diverse and, in some cases, opposing opinions need to be considered when we talk about the modernization of Canada's copyright laws.

It is easy to see why we need to do this. The technology available today has made our existing laws almost obsolete. The laws we have are suitable for another era. The last time we updated them, computers did not have the ability to hold much information. The Internet was still new, slow and not as diverse or complex. There was not a reliable or standard format for digital music beyond the CD. It was a time when a lot of us still had cassette players and some of us still had eight-track players in our cars. That was only 13 years ago. Let us fast forward now.

Now in 2010, we can see people using public transit watching a television program from the night before on electronic devices no bigger than a cassette tape. We see others listening to music on digital devices that can hold hundreds of songs. It is clear that the memory capacity of these devices has improved considerably compared to the cassette tapes we listened to 13 years ago. It is also clear that advances in digital technology have already gone beyond the scope of the existing version of the Copyright Act.

As I have mentioned, this is not the first attempt by the government to update the Copyright Act. Canada needs to be brought in line with advances in both technology and current international standards. The issue is not simple and yet it must addressed since it is at the heart of Canada's ability to be a competitive player in our increasingly technologically-defined world.

Ever since Canada signed the World Intellectual Property Organization Internet treaties, we have been on a collision course with the revamping of our existing laws. It is our commitment.

While it is important to protect the rights of the biggest players in the industry, such as movie studios, record labels, gaming and software companies and the like, it is also important to protect the individual artists, educators and consumers. We need to recognize the way in which people choose to consume copyrighted work and to have legislation that reflects this.

As we saw from the American prosecution of Napster, using the courts to fill in gaps in existing laws can become a bit like a game of WHAC-A-MOLE. We learned from that experience that the desires of the consumer will not conform to approval formats. If we close down Napster what happens? We get different file-sharing sites. I can see how this would drive some stakeholders crazy but it also illustrates how every battle won may not have a happy ending and that emerging technology can have the ability to expose loopholes in copyright legislation.

New Democrats are happy to be having this debate and see in Bill C-32 some good measures along with some that need improving. It is our hope that we will be able to roll up our sleeves and make the fixes that will allow this legislation to ultimately pass.

For many people, the sticking point in Bill C-32 is the overarching power given to digital locks. Copyright activist, Russell McOrmond. says:

All of the comparatively positive aspects of the bill are nullified by the legal protection of technological measures, including by allowing these all too often abused technologies to supersede and effectively replace the rest of the Copyright Act.

Digital locks exist. It is a phenomenon that has been accepted in some things and not others. People buy and use locked items now, such as video games, DVDs, software and so on. They are not really the issue. It is the legal power they will have and how that power is greater than it needs to be that is the issue.

This update treats the breaking of digital locks for personal use the same as if the lock were being broken for commercial counterfeiting. We do not do that in other areas. We do not treat a first-time shoplifter the way we do a bank robber. Why should we penalize a kid posting a mashup on YouTube that uses previously locked material the same way we would a real video pirate?

It was hoped that Canada would not go as far as the United States has with its digital millennium copyright act. We see in the United States a desire to criminalize the consumer and exact punishing fines that is too heavy-handed. We have concerns about emulating too much of the American position when it might not be necessary.

In the long debate leading up to this current update, we heard that Canadian musicians and songwriters reject lawsuits against individuals as a way to protect their material. They did not want to bring new meaning to Joe Strummer's Jail Guitar Doors. In fact, there are some musicians who see little value in trying to sell their work. A lot of artists in Canada release their own music online for free. They might use a Creative Commons licence to do this.

If the music is shared for free by others, with the owner's permission to do so, would it still be legal? I would be interested in hearing the answer to this question, since it will have an effect on the legitimate business practice.

For the artists who use a Creative Common licence, they see their products as advertising and a way to get people out to their shows. The new reality in the music business is that the money is to be found at the box office and not in the record store.

This update goes some of the way toward distancing Canada from the kinds of fines we have seen in the U.S. for consumers who download copyright material. The government tells us that it does not want to punish individual users. It wants to focus its deterrence and enforcement efforts on distributors and large websites that illegally host copyrighted content.

The fact remains that provisions in the legislation, especially the power given to digital locks, can lead to prosecution. Fines might be reduced from a maximum of $20,000 per copyrighted work to a one-time maximum penalty of $5,000 in situations in which copyrighted works have been illegally accessed for non-commercial purposes, but there are a lot of ways this can be interpreted.

We need to ensure the law does not prescribe excessive force when it is not needed. This update creates new limited exceptions to the fair dealing provisions of the Copyright Act, including exceptions for educators and exceptions for parody and satire for which Canadian artists have asked.

For educators, it is problematic. They will have to determine what these exceptions mean for materials used in the classroom. We have heard this on a number of occasions today with respect to educators.

There are also new regulations for materials distributed for distance learning and a requirement to destroy those copyrighted materials 30 days after the class has ended. One would have to get another copy to go back and re-read something. This will not make sense to many Canadians. It runs counter to most of our experiences.

Truth be told, there is more in the bill than I could cover in the time allotted to me. For example, there is a section that deals with those who do cover work. For a performer who makes a living by interpreting someone else's work, this is an important consideration as it is for the artist who has created the work on which the performance is based. Still, I would hope this does not extend to the average garage band that might make a few bucks here and there and basically learn the ropes by playing other people's songs. It would be something like charging a kid in minor hockey for emulating an NHL player's moves on a breakaway. Again, it would go against what Canadians would see as being both right and fair.

I will focus on the larger issues and leave the fine details to the work of the committee. I have outlined one already with respect to the power given to digital locks, and I will explore one more.

The bill effectively would end the copying levy on blank media by not including music-playing devices like iPods as the natural next in line to older forms that were taxed, such as CDs and cassette tapes. The legislation would end an important revenue stream for artists and would ignore the way that technology has changed, the very thing the bill is supposed to do.

On that note, I am sure that many of my colleagues here have been lobbied by some of these artists who have indicated that this is an important part of their ability to continue to be an artist and get a little revenue for what they have done. The exclusion of this provision sends the wrong message. We are really missing the mark if we do not include some kind of compensation to recognize the way these devices are used and the way that music, ebooks and other forms of digital art are shared. Without such a measure, we are cutting artists out of the mix and ignoring the reality and purpose of the current technology. We did not do that for previous forms of blank media. I ask the government this. What is so different about things like iPods?

If we want to hear an authoritative voice on this subject, we can listen to my colleague, the member for Timmins—James Bay. He is both a recording musician as well as an author and knows a thing or two about copyright from the perspective of an artist. Recently he was a featured guest at an American conference discussing the issues of the digital culture and the music industry.

To give members and idea of the importance of this event, T Bone Burnett addressed the same audience. Mr. Burnett also knows a thing or two about the music business. A musician and fabulous producer, he has worked with notable Canadians, like k.d. Lang and Bruce Cockburn, as well as international stars like Elvis Costello.

He has been nominated for an Academy Award for his work on film scores and is active in the search for a better way to present digital music than the current formats that are dramatically less responsive than the album format we have largely abandoned.

All this to say, the member for Timmins—James Bay, one of my colleagues from the northern team, is in good company as a stakeholder in this debate. The member has this to say about extending the blank media levy to the new music playing devices, “In a world of endless downloading, we need to provide a monetizing stream for artists...the levy is compensating artists for some of the enormous amount of copying that is taking place”.

It is fair to say that the New Democratic Party's position on copyright is based on the principles of compensation and access. It reflects our belief that artists need to be paid for their work and consumers should be able to access these works with the least amount of restrictions.

I want to go back and quote a few things from Dr. Jeremy de Beer. He raised this issue in his study of Bill C-61, of which Bill C-32 is a re-enactment. He stated 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. Future iterations of Bill C-61 that do not take the fair dealing provisions of the Copyright Act (and the overall scheme of the Act) into account would also likely to fail constitutional scrutiny.

There is some grave concern with respect to the constitutional scrutiny that the bill would actually have in place.

The copyright reform must be based on a willingness to work collaboratively to amend the many outstanding problems with the legislation.

As I have indicated, this is the third time there has been an attempt to update Canada's copyright laws in the last six years. The Liberals could not get it done with Bill C-60. The Conservatives could not get it done with Bill C-61. We hope that with Bill C-32 people will want to work together to address the problematic areas in the bill in order to ensure artists have legislation that will work.

We will see the bill through to committee with the hope that it can be improved so it will reflect the belief and be able to give Canadian copyright law the update it really needs.

[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.

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

Madam Speaker, digital locks are not a response to requests from artists. I would like to challenge the minister to show me what aspect of Bill C-32 benefits artists. It cuts their royalties and it creates exemptions for education. And numerous new exemptions make it so that artists, copyright owners, people and authors who would be entitled to revenue are now losing it.

Some have even said that this goes against the WIPO treaty because there is a section in that treaty saying that a country does not have the right to take away benefits that artists already have.

Second, I would like to know how artists will make more money with digital locks. Once, I bought a CD. I downloaded it because, no matter what the minister says, 90% of people still download their music. I tried to download it, but there was a digital lock on it. What happened? I listened to it once and that was it. That is what will happen.

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

Madam Speaker, I would like to respond to the hon. member for Timmins—James Bay, and perhaps the hon. member for Saint-Bruno—Saint-Hubert could add her thoughts on this matter.

We are not suggesting that artists and creators should not be supported by a government regime to protect what it is they have created and to find ways to monetize that. That is not at all what we are saying. We are saying that in the consultations that we had with regard to this legislation, no effective proposal came forward with regard to the private copying regime in this country. It, frankly, does not make sense.

My colleague from the Bloc Québécois keeps talking about downloading and MP3s. She does not mention applications like Stitcher and streaming online services. People do not download music now and then pay for the download. People are now streaming media online. There are whole new services now for streaming music.

Therefore, the proposals that she has talked about but has not written down so we cannot see the details of it, does not actually fit the current regime of how people are consuming music. It does not work. It is a solution for 1995. It is not a solution for 2010 and 2015. What she is proposing is window dressing. It is not actually substantive in dealing with the issue of the private copying regime. It does not actually substantively do it.

We are not pretending that this legislation fixes all things at all times. However, first, it does mandate a five-year ongoing permanent renewal of Canada's copyright regime, but, second, we tried to stop the bleeding.

We can disagree about how the music industry may or may not be monetized because none of us have owned software companies or video game production studios. We cannot pretend that we know how other companies will decide to monetized but we can agree and I hope we can all agree that we need to stop the bleeding. We need to make pirating and theft illegal in this country. We need to ensure that those who are creating in an effort to make a living out of what it is they love doing, which is music, software and video game publishing, are not being ripped off. That is article one.

We can agree to disagree on the issue of the private copying levy and the iPod tax, or however we want to talk about it, but let us agree with one thing, which is that Bill C-32 gets it right. We are going to make piracy illegal, protect those who are creating and ensure that they have an opportunity to move forward in this new economy. That is the first thing that we need to do and I hope the member will agree with that.

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

Madam Speaker, I have a two-part answer.

First, some artists' rights agencies got together recently and asked their boards of directors what advantages Bill C-32 had for them. It became clear that there were no advantages. Not only were there no new royalties or levies, but the old ones were being taken away. Obviously this bill cannot be balanced.

When we asked a group of people involved in the cultural sector whether they prefer Bill C-32 exactly as it stands—we still need to modernize the Copyright Act because it has not been updated since 1995-96—or whether they prefer no bill at all, the answer was unanimous and came from the bottom of their hearts. They do not want Bill C-32 as it stands, because it will take away the royalties and rights they already have. I would say that the publishing community has no idea that the new exemption will cause it to die slowly.

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

Madam Speaker, what I said and what I have noticed since becoming the heritage critic is that this government says it helps artists. However, when we take a closer look, we realize that this is not true, especially since it did not want to modernize royalties on musical works in Bill C-32. This means that artists will lose millions of dollars every year.

In the current legislation, there is a system of royalties for private copying. People can copy a musical work onto a blank CD, which is legal and helps artists. In fact, when purchasing a blank CD, a consumer pays a royalty of a few cents that goes to a collective society, the Canadian Private Copying Collective. This is a complex but rather fair system. The collective pays out to the artists the royalties it collects year after year. In good years, these royalties can amount to tens of millions of dollars.

However, under the current legislation, royalties are paid only on four-track audio cassettes, which few people use anymore, or blank CDs. It would be easy to include digital recording devices. It would truly modernize this bill and allow the Canadian Private Copying Collective to collect these amounts on every purchase and to distribute them. The consumer could make a copy at home on an iPod or MP3 player, no matter the brand, responsibly and lawfully.

That is the spirit of the existing law. If we want to make that spirit relevant to our times, we must add recording devices. It must be done. If we want to continue helping artists, that is how we can do it. A little help often lets artists do a great deal. This bill drains the lifeblood from artists, who will have a great deal less income and who will suffer.

Furthermore—

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

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

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