Bill C-11 (Historical)

Copyright Modernization Act

An Act to amend the Copyright Act

This enactment amends the Copyright Act to
(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

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

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—

[The Chair, NDP, Glenn Thibeault]

Good afternoon, ladies and gentlemen, members of the committee, and our witnesses.

Welcome to the 10th meeting of the Legislative Committee on Bill C-11.

I just want to remind all of the honourable members that this meeting is televised.

I'd like to start off by introducing our witnesses, who will be with us for the duration of the clause-by-clause process.

From the Department of Industry, we have Madame Monteith, Monsieur DuPelle, and Mr. Peets; and from the Department of Canadian Heritage, Mr. Olsen.

Thank you for being with us for the next few weeks.

Before we begin, members, I just want to remind you about a few things.

First, we have routine motions, which are going to guide us on the timing for each of the parties in relation to discussion on the clauses and amendments.

The clerks and I have six timers going in relation to the routine proceedings and the motion that was passed.

So let me read it to you:

That the Committee begin clause-by-clause consideration of the bill no later than Wednesday, March 14, 2012; that debate be limited to a maximum of five (5) minutes per party, per clause, and five (5) minutes per party per amendment.

That's what we will be doing.

When we start the clause-by-clause process, whoever starts will have five minutes to discuss the clause. When we get to the amendment piece, you have five minutes to discuss the amendment. If there is a subamendment, then you need to introduce that subamendment within the five minutes. You will not be given another five minutes for the subamendment.

Is everyone clear with that? There are five minutes to ensure that you have time to introduce your subamendments, if you have those, but you will not be given an extra five minutes for a subamendment.

Also, it looks as though we will have votes in the near future, so we may have to start this process and then shut it down very quickly, but we will be coming back.

With that, just moving forward, we will obviously be postponing the preamble in clause 1 until the last part of this clause-by-clause process.

Now I will open up for discussion clause 2.

Does anyone have any discussion on clause 2?

Seeing none, shall clause 2 carry?

Protecting Canada's Immigration System Act

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, I will be splitting my time.

I rise today to speak to Bill C-31, an act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act.

Before I get to that, we have heard in the House that in the previous Parliament, Bill C-11 was passed. I want to quote what a member of the government was saying at that time. He said:

I am pleased to report that the proposed reforms in the original version of Bill C-11 received widespread support. However, many concerns were raised in good faith by parliamentarians and others concerned about Canada's asylum system. We have, in good faith, agreed to significant amendments that reflect their input, resulting in a stronger piece of legislation that is a monumental achievement for all involved.

Who said that? The current Minister of Citizenship and Immigration. I quote him further. He said, “I am happy to say, create a reform package that is both faster and fairer than the bill as it was originally tabled”. He even praised how parties worked together to reach consensus and come up with that bill that worked for all parties. He went on to say, “Miracles happen”.

He further went on to say that the government took constructive criticism into account and recognized the need to work together. That was just a year ago. That was Bill C-11. All of the parties worked together to come to a consensus that would deal with some of the issues such as backlogs, having a fairer system for refugees, and so forth. He went on further to say, “The reforms we are proposing should have been implemented a long time ago”.

What has changed since June 2010 until now? Is it because the Conservatives got their slim majority and they are bringing out their hidden agenda? Instead of catching the smugglers, now they want to punish the refugees.

I will outline my concerns in regards to Bill C-31.

Bill C-31 is basically an omnibus refugee reform bill that combines the worst parts of the former Bill C-11, Balanced Refugee Reform Act, from the last Parliament, with Bill C-4, , preventing human smuggling, from this Parliament. It has basically three main purposes: a repeal of most of the compromises from former Bill C-11. It reintroduces Bill C-4, preventing human smuggling, which targets refugees instead of the smugglers. It introduces the collection of biometrics for temporary residents.

Bill C-31 would concentrate more power in the hands of the minister by allowing him to name safe countries and restrict refugees from those countries. Under the former bill, Bill C-11, this was to be done by a panel of experts, including human rights experts. Refugee claimants from safe countries would face extremely short timelines before hearings, 15 days. They would have no access to the Refugee Appeal Division in the event of a bad judgment. They would have no automatic stay of removal when filing for a judicial review and could not apply for a work permit for 180 days. It would also limit access and shorten timelines to file and submit a pre-removal risk assessment application and evidence.

Not only would the minister have the discretion to designate countries of origin, safe countries, the minister would also have the power to designate a group as an irregular arrival and determine what condition would be placed on those designated as refugee claimants.

Let us take a look at the designated countries of origin, DCOs. Designated countries of origin would be countries which the minister believes do not produce legitimate refugees, usually because they are developed democracies. The designated countries of origin would be decided by the minister, not by experts as was previously agreed to with the consensus of all parties.

Refugee claimants from the designated countries of origin would face a much faster determination process and a faster deportation for failed claims. Furthermore, an initial form would be filed in within 15 days.

Failed designated countries of origin claimants could be removed from Canada almost immediately, even if they asked for a judicial review. In other words, a person could be removed before his or her review was heard. DCO claimants would have no access to the new refugee appeal division.

There are a number of concerns with this. The accelerated timeline of 15 days would make it difficult for people to get proper legal representation. This could lead to mistakes and subsequently a negative decision. Legal experts have warned that these accelerated timeframes and restricted access to the refugee appeal division would create an unfair system.

Furthermore, the effect of the accelerated deportation would mean that people would be removed from the country before the legal process had run its course. The refugee appeal division should be available to all claimants.

There are also concerns in regard to changes to the humanitarian and compassionate consideration. The humanitarian and compassionate consideration is a tool whereby a person can stay in Canada despite not being eligible on other grounds. Under Bill C-31, claimants waiting for an IRB decision could not apply for humanitarian and compassionate consideration at the same time. A person would have to choose at the beginning whether he or she wanted to file for refugee status or for humanitarian or compassionate consideration.

Failed refugee claimants could not apply for humanitarian and compassionate consideration for one year following a negative decision, by which time they would likely be deported.

There are a number of concerns with this aspect of the bill. This strips much of the usefulness from the humanitarian and compassionate consideration. Humanitarian and compassionate consideration is a very important tool in our immigration system. Many people whose refugee was claim denied could nonetheless have a legitimate claim on humanitarian and compassionate grounds. Therefore, a failed refugee claim should not get in the way of humanitarian and compassionate consideration.

Another part of this bill that concerns me is clause 19(1) which adds new language into the loss of status section for permanent residents. It adds that existing criteria for ceasing refugee protection can be a reason to lose permanent residency status. Included in the list is if the reasons for which the person sought refugee protection have ceased to exist.

In summary, there are many concerns with this bill. The new bill does not address some of the needs of our current system. The Conservatives are playing politics with refugees, and concentrating excessive and arbitrary powers in the hands of the minister. The Conservatives continually frame their draconian legislation in terms of bogus refugees and those abusing the system, but what they are really doing is punishing refugees with ineffective measures that will not stop human smuggling.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, under Bill C-11, which passed unanimously with the support of the Liberals, the New Democrats and the Conservatives, there was an advisory council that would ultimately determine and recommend to the minister what countries around the world would be designated as a safe country to be put on to a safe list.

Now the Minister of Citizenship, Immigration and Multiculturalism has changed his mind thinking he knows best and that he alone should be the one who makes the determination.

Given the consequence of that particular designation, would he not agree that this is the wrong way of approaching the putting together of a safe country list and that the government should support an amendment that would be brought forward from the Liberal Party saying that it should be an advisory group, not the individual minister, that makes the determination of which country is a safe country?

[Martha Rans]

Thank you.

What artists want is to communicate with those who want to enjoy and use their work.

As proposed, Bill C-11 invites litigation in many areas. The burdens of litigation bring fear, confusion, and unintended costs—costs this government and the people of this country will bear. They could create problems where none need to exist and could delay the progress that has been made in best practices.

Will Bill C-11 enable transformative works and alternative distribution networks, as well as provide streams of remuneration through digital reproduction in collective societies? You need to answer that question.

The norms that underlie copyright should be the ones that enable Canadian culture to flourish, help artists make a reasonable living and reach an audience at the same time—not as an either/or proposition—allow for less restrictive personal and educational reuses, and maybe, take a step away from intellectual property solely as commodity exchange and towards meaningful cultural conversations.

Thank you.

[Jesse Feder, Director, International Trade and Intellectual Property, Business Software Alliance]

Thank you.

Mr. Chairman and members of the committee, my name is Jesse Feder. Thank you for inviting the Business Software Alliance to appear today.

BSA is a non-profit trade association created to advance the goals of the software and information technology industries. BSA is active in more than 80 countries, including, of course, Canada. Our global mission is to provide a legal environment in which the industry can prosper.

As technology companies, BSA members are strong proponents of the freedom to innovate. They are also strong proponents of a vibrant Internet. Not only do our companies provide much of the technology that makes the Internet work, but our industry has staked a great deal on the future of cloud computing, which requires a functioning Internet.

The software industry also happens to be the world's largest copyright industry. We are critically dependent on copyright protection and enforcement to safeguard huge investments in new creative products. Combatting software piracy is a big part of what BSA does. With more than $58 billion a year in software theft around the globe, there is plenty for us to do.

Because of our dual interests in promoting innovation and fighting piracy, we know how important it is to strike the right balance between technology and copyright interests. We do not view these interests as irreconcilable.

As we see it, Bill C-11, broadly speaking, has three principal objectives: modernizing Canada's copyright law by implementing the WIPO treaties; addressing online infringement; and revisiting the balance of rights and exceptions in existing law. BSA strongly supports these goals.

When we examine the bill in light of these objectives, we find it to be a good starting place. Nevertheless, there are elements that we believe could be clarified or improved upon, which I will describe further in my testimony.

BSA commends the drafters of Bill C-11 for doing a thorough job of implementing the WIPO treaties. Two elements of WIPO implementation of particular importance for our industry are the right of “making available” that covers the posting of works on the Internet, and the protection of access and copy-control measures from acts of circumvention and trafficking in circumvention tools, which Mr. Eisen already spoke to. These are critical legal tools in the Internet age, and we look forward eagerly to their enactment.

Going beyond WIPO treaty implementation, Bill C-11 includes additional provisions to address online piracy. Although unlicensed software used by businesses is by far our industry's biggest piracy problem, online piracy is a serious and growing problem as well.

At the same time, we recognize that the Internet is used overwhelmingly for legitimate purposes. Enforcement tools need to be crafted in a way that does not harm the Internet or infringe on legitimate conduct.

BSA believes that fighting online infringement works most effectively when it is a cooperative effort by right holders, intermediaries, and end users. Unfortunately, we don't believe that the bill will quite get there.

The bill creates a new cause of action against those who provide services on the Internet that are designed to enable acts of infringement. At the same time, it creates blanket immunities for ISPs, requires ISPs to forward notices of claimed infringement to subscribers, and limits remedies against direct infringers if the infringements are for non-commercial purposes. In effect, the weight of enforcement falls largely on a narrow category of technology providers whose offerings enable infringement; enforcement against direct infringers is made more difficult and uncertain; and ISPs are largely relegated to the role of bystanders.

BSA agrees that those who, by their conduct, induce, encourage, and assist others to infringe, or who build their businesses on others' infringement, should be liable as infringers. We believe that is the kind of conduct the bill has in its sights. Unfortunately, the new cause of action is undercut by the unavailability of statutory damages.

Our biggest concern with the bill is the role it envisions for ISPs. We readily agree that ISPs should not bear the burden of policing the Internet, nor should they face liability for damages for simply operating a network. They should, however, cooperate with right holders by taking action to curtail infringing conduct when it is brought to their attention, or is so blatant and obvious that it cannot escape their notice.

In this context, it's important to draw a distinction between hosted infringement and peer-to-peer infringement.

For hosted content, ISPs should be required to remove files expeditiously, when they receive a notice of claimed infringement, or become aware of facts or circumstances from which infringing activity is apparent. Subscribers should have the right to dispute such a notice, and have the content restored unless the right holder commences a lawsuit. This is the approach taken in many jurisdictions around the world. Experience has shown it to be effective and minimally intrusive.

Content on peer-to-peer networks presents a bigger challenge, since the remedies in that space are far more intrusive. For content that is not hosted on an ISP system or network, notice-forwarding, as proposed in the bill, is a good first step. Beyond that, BSA supports voluntary arrangements between ISPs and content owners to use ISPs' terms of service agreements to sanction repeat infringers. If sanctions are to be imposed on subscribers under colour of law, subscribers must be given a fair hearing before an impartial third party prior to imposing any sanctions.

To create an incentive for cooperation by ISPs, the liability limitations ought to be conditioned on ISPs taking the steps I just described. In addition, right holders should be permitted to obtain an injunction against an ISP to halt infringing activity.

Finally, the provision on immunity for hosting should not apply to liability under the proposed enablement provision. It would not make sense to grant immunity to an entity that, by definition, is a bad actor.

With regard to statutory damages, we are concerned that Bill C-11 would limit their availability against non-commercial infringers. This would have a detrimental effect on the deterrent value of copyright protection. It also would put an unfair burden on right holders in the context of online infringement, where it's often difficult or impossible to quantify damages. Whether or not an infringement is carried out for commercial purposes, it can have a significant commercial impact. We see no justification for holding non-commercial infringers any less accountable for their behaviour.

Time does not permit detailed discussion of the many new limitations and exceptions proposed in the bill, but I would like to make three brief points.

First, computer programs are already subject to exceptions under section 30.6. A number of the proposed exceptions would overlap these existing exceptions. We believe the more specific exceptions of section 30.6, rather than the new general exceptions, are what should apply to computer programs.

Second, the proposed amendment of section 30.6 to override contracts should be stricken. Nearly all software is licensed to users. The licence model has been employed by the software industry since its inception, and has been critical to the industry's success. Licences allow software creators to grant a clear bundle of rights to their customers, including rights more extensive than those in section 30.6. We are not aware of any real-world problems under the existing provision, and urge that it be left alone.

Third, the bill proposes a new interoperability exception inspired by article 6 of the EU's 1991 computer programs directive. The directive contained a number of safeguards to ensure that the exception would not be used inappropriately. Those safeguards ought to be included in proposed section 30.61.

Thank you again for the opportunity to testify today. I'd be happy to answer any questions if the opportunity presents itself.

[Michael Eisen, Chief Legal Officer, Microsoft Canada Co.]

Thank you.

Good evening.

In my role as Microsoft Canada's chief legal officer, I'm committed to working with government and other interested parties to help fashion the best legal and policy frameworks possible to build a productive, healthy, and safe Canada.

It goes without saying that copyright reform in Canada has been long in the making. Bill C-11 is the fourth attempt to amend the Copyright Act since 2005.

It also goes without saying that copyright law reform is critical to bringing Canada's laws into the 21st century. In addition to implementing the rights and protections of the World Intellectual Property Organization Internet treaties, we need a new framework that allows businesses to compete and Canadians to realize their potential.

Bill C-11 provides this framework. In Microsoft's view, it will provide appropriate protections to artists, creators, and other innovators. It will facilitate the emergence of new products, services, and distribution models, and it will promote the interests of educators and consumers. In short, the bill will modernize Canadian copyright law in a fair manner that deters those who would disregard the rights of creators, while striking a careful balance with the interests of users.

As the copyright reform process has demonstrated, balancing the rights of creators with the interests of users is a difficult exercise. I suspect that almost all stakeholders, including Microsoft, could identify elements of Bill C-11 that they do not like.

However, the time has come to move forward. As a result, in the interests of seeing copyright reform in Canada come to fruition, I will limit my detailed comments to the TPM provisions and a small number of technical fixes necessary, I believe, to achieve the legislative intent behind the bill.

Microsoft is of the view that Bill C-11's approach to technical protection measures—that is, a general rule against circumvention of access controls, subject to exceptions—is appropriate.

To begin with, it is most important to recognize that Bill C-11 does not prohibit circumvention of copy controls. Once a consumer lawfully obtains a copy, subject to any limitations imposed by contract, the consumer is entitled to do anything that is permitted by the fair dealing provisions or another exception.

Rather, the prohibition on access controls ensures that people who want to take advantage of a fair dealing exception lawfully acquire, through purchase or licence, a copy of the work. This ensures some measure of compensation for creators in much the same way the fair dealing provisions operate today in respect of non-digital works.

Second, the multiple exceptions to the general rule against circumvention of access controls reflect a careful balancing between the rights of creators and the interests of users. Trying to accommodate all potential legitimate uses in the legislation would create large loopholes for pirates and other bad actors to avoid liability. The same concern about loopholes justifies creating a relatively strict ban on devices. To allow trafficking in circumvention devices would make it too easy for bad actors to create and sell devices that are used for illegitimate purposes.

Third, if a legitimate concern about TPM overreach arises at some time in the future, the broad regulation-making authority found in Bill C-11 will enable the government to create new exceptions to the general rules against circumvention of access controls and use of circumvention devices.

The exception process provides government with flexibility to address, among other things, the use of TPMs to improperly restrict competition in the aftermarket sector, or to adversely affect fair dealings for news reporting, commentary, parody, teaching, or research.

The government also retains the power by regulation to require owners of copyright-protected work to make their work accessible to people who are entitled to the benefit of an exception. In short, the TPM provisions ensure that there will be an appropriate balance between the needs of creators and users, both now and in the future, if unintended consequences are identified or as new technologies emerge.

Moving now to technical fixes, Microsoft's view is that Bill C-11 requires limited revisions. In particular, the wording of the new “exceptions to infringement” provisions should be revised to avoid what we expect are potential unintended consequences. Most significantly, the exceptions are not bound by a requirement that the dealing with the work be fair.

The exceptions of most concern to Microsoft are interoperability of computer programs, proposed section 30.61; encryption research, proposed section 30.62; and security, proposed section 30.63. In each case, a simple technical fix is available.

Specifically, the exceptions could be made subject to a requirement that the applicable activity be fair. The factors to be used to assess what is fair would be the same factors identified by the Supreme Court of Canada in the CCH decision in connection with fair dealing: the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing on the work.

Finally, I would like to conclude by thanking the committee for providing Microsoft with an opportunity to make these remarks.

I look forward to any questions, if we have that opportunity.

[Martha Rans, Legal Director, Artists' Legal Outreach]

Thank you.

My name is Martha Rans. I'm the legal director of the Artists' Legal Outreach. I've been a lawyer for 18 years, advising artists in all disciplines.

The ALO provides advice and information to thousands of B.C. creators every other week in the province. As a copyright educator, I lecture before hundreds of students of art and design, who are the future of the creative sector in this country.

Creativity flourishes irrespective of the law. It always has and always will. However, it does not exist in isolation from where artists work, present, speak, perform, build, and think. It requires some level of support. For many artists, copyright has supplanted arts funding as the mechanism through which we in society recognize and implicitly value their creativity.

I'm not here to talk about products and innovation, information and data, or a religion, for that matter. I'm not a legislative expert, an academic, or part of an industry. I'm here to share with you some of the experiences I've had with artists—whether they're in Temiskaming or Vancouver—around copyright.

Bill C-11 as it stands is too complicated for most digital producers to be able to interpret, and the fear of litigation harms individual artists and the cultural sectors they too comprise. This is particularly the case where we have limited access to legal advice, education, and information. This doesn't mean that we need more lawyers. It means that we need a framework built on solid principles and clear policy that are well understood by the public and creator alike, and that will enable artists to negotiate for themselves.

Bill C-11 as currently drafted fails to provide a copyright framework that is clear, predictable, or fair. The user-generated content provision is an example of this.

Here, you're proposing to legislate in an area where I would suggest it's quite unnecessary. Our sons and daughters will continue to create and upload videos of themselves dancing to Justin Bieber, whether we like it or not and whether or not there's a law. That has always been the case.

As a result in part of YouTube's algorithms intended to automate to identify potential third-party content, other sites have emerged without those algorithms—Vimeo, Blip, and others—which suggests to me that an exception is not required to enable any of us to find outlets for our self-made creations, and we don't need a law to do that.

Josh Hite, a Vancouver media artist, made a video called Chug Chug Chug, based on clips he found on YouTube. The exception as drafted makes it no easier for him to show it, even at a festival. Even a non-profit festival in Brazil has turned him down.

We are, however, seeing best practices emerge that respect original creators and do not penalize users. It seems to me to be worthwhile to avoid unnecessary legislative intervention that could slow the process. Getty Images recently announced a mishmash competition. It seems to me that copyright holders like Getty have adapted to the new digital landscape.

A new copyright regime that enables artists to create transformative works is what we need, one that respects how art is actually made. At the Vancouver Art Gallery right now, Sonny Assu and Jackson 2bears have work in their show that arguably infringes copyright, and Bill C-11 does absolutely nothing to change that fact.

To the extent that amending fair dealing could enable an acceptance of transformative use, then perhaps we could make use of those amendments. I'm not convinced, however, in light of the fact that this will undoubtedly foretell a significant amount of litigation.

Adding education to fair dealing will not solve the funding crisis that educational institutions and other publicly funded institutions such as libraries, museums, and galleries have. The result of the opting out of the AC tariff by various post-secondary institutions in 2011 is evidence of that. I doubt very much that adding education to fair dealing—though I personally support doing so on philosophical grounds—will change that. There's a continuing widespread misperception about the impact of that change.

In the absence of statutory licence provisions that mandate specific uses that will enable our copyright collectives and will address digital reproduction rights to artists, I don't see this taking us further forward. There are now communities of folks seeking to make it possible for widespread sharing of resources across many platforms in legislative environments—

[Ferne Downey, National President, Alliance of Canadian Cinema, Television and Radio Artists, Recording Artists' Collecting Society]

Thank you, Mr. Chair and committee members.

My name is Ferne Downey. I'm a professional actor, and the president of ACTRA and the Recording Artists' Collecting Society, also known as RACS. With me is Warren Sheffer, a lawyer with Hebb and Sheffer, who specializes in copyright law.

Created in 1997, RACS is a non-profit organization whose sole purpose is to distribute equitable remuneration and private copying moneys under the Copyright Act. We represent more than 4,000 Canadian recording artists and several thousand more international artists through our reciprocal agreements with collectives around the whole world.

For thousands of Canadians, making music and other creative pursuits isn't a hobby; it's a job. It's how we cover our bills, feed our families, and pay our taxes. Professional recording artists are entrepreneurs who contribute to Canada's $85 billion cultural industry.

Unlike most Canadians, professional artists don't live on one paycheque from a single employer. Rather, we rely on small cheques from many streams of revenue, which add up to allow us to pay the rent or live or invest in our new projects. Don't forget that each new recording project means creating jobs—booking studio space, or hiring an engineer, session musicians, and even a designer to create your digital album art. That's why the private copying levy has been so vital.

For nearly 15 years, our copyright laws recognized that copies have value. Millions of dollars have gone to creators to compensate them when private copies have been made of their work. Unfortunately, Bill C-11 doesn't extend the levy to the new technology being used to copy music. As a result, there will just be less money flowing to these artists, who already struggle to piece together the income to create the music we love.

Now, we've heard you. We know the government's position on this and we're not going to harp on it, but we do need you to understand that letting the levy wither away means lost revenue for these small business people. In a very real sense, the Copyright Act establishes a business model for professional artists and allows them to create a market. We know that in many cases, recording artists' greatest assets are works they have recorded in the past. They can make a living if that intellectual property is protected. Good copyright legislation must therefore do more than punish those who violate the law, it must protect the right of those who own the copyright to control and license their work.

Unfortunately, in many respects, Bill C-11 does not meet this test. There are just too many new exceptions. We at RACS support the 20 amendments put forward by the Canadian Conference of the Arts on behalf of 68 cultural organizations. Today we'd like to speak briefly to a couple of these, which are of particular interest to the recording artists we represent.

First is the user-generated content exception. One of the best things about Bill C-11 is that it finally puts the 1996 WIPO Internet treaties into Canadian law, giving performers moral rights in their oral performances and a “making available” right. However, a few pages later, moral rights are then threatened by the UGC provision that allows people to mash up creative works at whim. We understand the government's intent, but this YouTube or mash-up exception is too permissive and threatens to trample on creators' economic and moral rights. By adopting the UGC exception, you will take away the opportunity for Canadian artists and makers, such as studios and record labels, to license their products.

In other countries, collectives are entering into licence agreements with businesses like YouTube. Canadian creators need to have the same right to control and license our work. We urge you to either remove the UGC provision from Bill C-11 or amend the bill to protect creators' moral and economic rights.

Second are statutory damages. Statutory damages are an important tool in deterring copyright infringement. We believe that damages should be proportionate to the infringement, and so far in Canada they have been. Therefore, we don't see any reason to create a new distinction between commercial and non-commercial infringement. Drawing this distinction reinforces the message that it is okay for me not to pay for music or movies, as long as I'm not selling my illegal copies to anyone else.

When you combine the drastic reduction in statutory damages with the legal costs, it also sends a clear message to creators that they might as well not pursue remedies for these infringements in court.

Bill C-11 also gives illegal file-sharing sites a licence to keep enabling illegal activity by exempting them from statutory damages. Now we don't think this was intended, and we urge you to fix that technical error.

I'll turn to Warren, who will talk very briefly about a third vital area.

[The Chair, NDP, Glenn Thibeault]

Good afternoon, everyone. Welcome to the ninth meeting of the Legislative Committee on Bill C-11.

Today is going to be an interesting meeting. Bells are expected in a few minutes, so we'll need to have a quick interlude while we go to vote and then come back.

The clerk has briefed you all that we've changed the opening statements to five minutes. If you haven't had that opportunity I will give you a little bit of leeway, but we are trying to save time so that members can ask more questions to get the answers we are trying to look for with this committee.

We have four witnesses today. From the Recording Artists' Collecting Society, we have Ferne Downey and Warren Sheffer. From Artists' Legal Outreach, we have Martha Rans. From Microsoft Canada, we have Michael Eisen. From Business Software Alliance, we have Jesse Feder.

Thank you for being here today.

I will stop speaking and get right to opening remarks. We will start with the Recording Artists' Collecting Society.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I am pleased to stand and debate this bill and present the position of the official opposition, the New Democratic Party of Canada, on Bill C-31, improperly and inaccurately named “protecting Canada's immigration system act”, because this bill would do damage to Canada's immigration system legally, socially, morally and internationally.

I want to talk about the omnibus nature of this bill which, just from a structural point of view, is something that is a disturbing feature of the Conservative government. Canadians saw already in this Parliament, the government take nine separate pieces of serious and complex crime legislation and put them into one omnibus bill and then put that before parliamentarians to discuss and debate. Now we see the minister take two separate major pieces of legislation, as well as another serious issue, which is that of biometrics, and combine those into one bill.

For Canadians who may be watching this, I want to explain a bit about what those bills are. By introducing this bill, the minister has taken Bill C-11, which was introduced in the last Parliament, debated, went through committee, was amended and passed in this very House, went through all three readings at the Senate committee and passed there, received royal assent and was waiting to be implemented this June, and the minister has stopped that bill from being implemented this June. I will tell members a bit more about what the minister had to say about that bill in a few moments. That bill was geared toward reforming Canada's refugee system.

About that bill, in June 2010 the minister said:

We have, in good faith, agreed to significant amendments that reflect their input, resulting in a stronger piece of legislation that is a monumental achievement for all involved.

These amendments, I am happy to say, create a reform package that is both faster and fairer than the bill as it was originally tabled.

Those were the comments by the Minister of Citizenship, Immigration and Multiculturalism on Tuesday, June 15, 2010. The minister has now taken the original bill that he had tabled in the previous Parliament, before those amendments that made it fairer and faster, and has thrown the amendments in the garbage and reintroduced the original bill, the very bill that he said was inferior to the amendments that were made by all parties of this House. The minister has, not unsurprisingly, neglected to explain that.

In addition, one of the first bills the Conservatives introduced in this Parliament was Bill C-4, again inaccurately and unconscionably titled a bill concerning human smuggling. It has been going through debate in this place but the minister has taken that bill and put it into this current Bill C-31. There is no explanation as to why he would take a bill, which has already been introduced and is moving through the system, slow it down and put it back into this legislative process, basically putting us behind where we would have been. I have a theory as to why that may be the case. Bill C-4 has been roundly condemned by virtually every group and stakeholder involved in the immigration system in this country, from lawyers, refugee groups, churches and immigrant settlement services across the board. I cannot name any group that has sent any message that it supports Bill C-4.

As well, the government has taken another issue, biometrics, and put that into the bill. What is puzzling about that is that approximately 30 days ago we commenced a study in the Standing Committee on Immigration and Citizenship on biometrics. We have had a handful of meetings and are in the middle of our study of biometrics and the government introduces legislative steps on the very thing we are supposed to be studying. I wonder what that says about the government's view of the work of standing committees and the experts and witnesses who appear before our committee when it actually comes to a conclusion before we have heard all the evidence.

I want to talk about the substance of Bill C-4. Bill C-4 was hastily drafted by the government when Canadians witnessed the spectre of two boats coming to the shores of British Columbia carrying some of the most damaged and wounded people on earth, people fleeing, as the minister has rightly pointed out, one of the worst civil wars in the world in Sri Lanka.

Some 550 people were on those boats. And, never ones to pass up a good photo op, the Minister of Immigration and the Minister of Public Safety were there doing news conferences outside accusing the people on those boats of being bogus and of harbouring terrorists. They said that publicly. They also accused them of queue jumping.

What anyone going through the immigration system knows up to now is that there is no queue jumping. It is a normal part of our refugee system for people to make their way to a country by regular means and make a refugee claim, and the Minister of Immigration knows that. No queue is being jumped. The Minister of Immigration actually went into immigrant communities where they were suffering long delays in their applications for permanent residency to sponsor their parents and preyed on their frustrations at his government's inability to deal with that backlog and wait time and tried to foster resentment from those immigrants toward these refugees.

We always want to be careful with our analogies but we need to consider the Jews when they were fleeing Nazi Germany during World War II. When they made their way into a neighbouring country through the dark of night, they did not arrive with a visa. They did not come through any UNHCR process because there was none at the time. They just made their way to safety. Those people were not bogus. They were not jumping any queue. They were escaping for their lives. That is what people do and that is what those people were doing on those boats.

To make the claim that those people were terrorists before there was an adjudication is as incendiary and as inflammatory as it is wrong. To this day, of 540 people, none have been deemed to be terrorists. Also, if anyone has any kind of question about their origin, there are less than a handful.

What would Bill C-4 do? It would allow the minister to concentrate his power. The Minister of Immigration wants the power to designate people as irregular arrivals. Under the bill, it just says a group. It does not define how many. We presume it is two or more. What happens to those people? Those people could be detained for up to a year without review.

I will talk about the legality of that. The identical provision has gone to the Supreme Court of Canada in the security certificate cases and it has been deemed unconstitutional, yet the government puts it right back into this bill. Moreover, the minister says that they can come out if they are deemed to be refugees. That is true but that assumes that we have a refugee determination system that would make that determination in under a year. If it does not, people could be stuck in detention for up to a year. Even if those people are deemed to be bona fide refugees, this part of the bill would still prevent those people from being able to make a permanent residency application for five years or sponsor their family for five years. I will say right now that that is a violation of the UN convention on refugees and a violation of the UN Convention on the Rights of the Child.

I will explain for the minister why that is the case. I put the question to him and he avoided answering the question. It is because the UN convention on refugees says that signatories, which Canada is, are not to put penalties on people who arrive at our shores by irregular means. If people who are deemed to be refugees are then prevented from sponsoring their families for five years or prohibited from making a permanent residency application for five years, they are absolutely being penalized because of their irregular entry.

The minister said that if they make a successful refugee claim they would be let out within the year. That is true but what about the five year bans? The minister refuses to answer that. That is the differential treatment of someone who comes through in the other process and it is a violation of the UN convention on refugees.

In terms of the rights of the child, the Ocean Lady and the Sun Sea, the two boats came to Canada's shores, included children who were travelling unaccompanied. The UN Convention on the Rights of the Child obligates signatories, of which Canada is one, to put the best interests of the child first and foremost in our determination, and that includes in the immigration system. If we have a 14-year-old or a 12-year-old child who comes to our country and is deemed by the minister to be an irregular arrival, he or she would be prohibited from sponsoring his or her parents for five years. That is not in the best interests of that child. I say that there is a violation there.

Lawyers across the country from the Canadian Bar Association to the Canadian Association of Refugee Lawyers have all said that the detention without review process will be attacked as a violation of the charter in three different ways. The act will go to the Supreme Court of Canada, mark my words.

Let us talk about the Bill C-11 component. All parties in the House in the last Parliament worked in good faith to reform Canada's refugee system. I will grant the minister that there was need for reform. The minister is correct when he says that the old system is not working. People make a refugee claim, they are denied, they appeal. Then they make a H and C application and they are denied the appeal. Then they make a pre-removal assessment application and they are denied the appeal. It can take too long to remove people who do not have valid claims.

That is why the parties rolled up our sleeves last Parliament and worked on a streamlined quick process to make those determinations. The New Democrats proposed, as we have for a long time, through our hard work, that the government actually put in place a Refugee Appeal Division, which I will give the minister credit for doing. The Liberals never did do it and the current minister did. However, it was pushed by the New Democrats all the way.

The problem with the bill is that the minister then wanted to deny access to the appeal division of people that he determined to come from so-called safe countries. The minister wanted the sole power to determine what was a safe country. Again, that is too much power concentrated in the hands of one person. The opposition asked why he did not have an independent panel of experts to guide him with firm criteria and the minister accepted that change. In fact, he praised it. He said that it made the process of designation more transparent. Those are not my words, they are the minister's words in the last Parliament. Now today, the minister has thrown that panel out and he wants to go back to the original proposals so that he alone determines what is a safe country.

As well, the minister wanted to deny access to the appeal division to people who came from what he deemed to be safe countries. In the last Parliament, we persuaded the minister and we said that everyone had a right to appeal. We cannot have a justice system where some people have a right to appeal and some do not. Imagine how Canadians would feel if we said that if they went to court, their neighbour could appeal the decision, but they could not, depending on where they came from. We were successful in saying that everyone had a right to appeal no matter where they came from.

While I am on this subject, a fundamental difference between the Conservatives and the New Democrats is that New Democrats believe that every country in this world is capable of producing a refugee. There are cases where some countries or more or less likely, but every country is capable of that. In particular, on the LGBT community, 100 countries have some form of legal discrimination against the LGBT community. Governments change.

The minister said that there were EU countries that had refugees and they had to be safe. Right now the far-right government of Hungary is currently passing laws before its parliament to have the power to pass laws in 24 hours, with 6 minutes of debate accorded to the opposition parties. It is amending the constitution. There is the situation of the Roma in Europe. Everyone knows in World War II that Jews were rounded up because of their faith and ethnicity. Roma were rounded up because of their ethnicity as were disabled and communists. These were historically discriminated against, including Roma. There is a long history of established discrimination against Roma, and those people come from Hungary. They come from the Czech Republic, from Romania, from countries that are members of the EU in some cases and those people have a right to make their claim.

The minister has thrown out the panel of experts to advise him. I ask why? If the minister is so confident that he can choose which countries are safe countries, why would he not want the benefit of advice from experts in human rights, the very idea he praised and thought was a good idea 18 months ago?

The Minister of Citizenship, Immigration and Multiculturalism may have great faith in his own judgment, but to have one person make such important determinations as to what country is safe or not, which country is or is not capable of producing refugees and who is an irregular arrival who will be subject to detention for up to a year without review and penalties that might keep their families apart for a decade. That is too much power for one person. We should build in checks and balances and that would be the case no matter who would be the minister of immigration, including a New Democrat. I do not know who would make the argument that the system is not better served by having that kind of check and balance.

In terms of the biometrics, biometrics is a system whereby this legislation would have people who apply for a visa to come to this country provide their fingerprints and pictures. That is a model we should be looking at, but there are significant privacy considerations and the Standing Committee on Immigration is looking at those very considerations right now.

The privacy commissioner has already testified and she says that providing a fingerprint for the purposes of identification to ensure that people presenting at our borders are who they say they are is fine. However, taking that fingerprint and comparing it to a wide database for other purposes or sharing that information with other countries or other bodies raises serious privacy concerns. We are in the middle of looking at those and those are issues that the government would be well advised to pay attention to before we proceed down that path.

I want to talk about a few other things that the bill would do.

The bill would prevent someone who has been convicted of a jail sentence of more than 10 years from making a refugee claim. I have raised this issue as well. Nelson Mandela was convicted of a crime for which he received a sentence of more than 10 years. Under the legislation, were that to happen today, Nelson Mandela could not make a refugee claim in Canada. He might be able to make a humanitarian and compassionate claim but no refugee claim. I have not heard the government explain that.

The bill would also, for the first time, give the minister the power to refer to the IRB the case of a refugee who had now become a permanent resident. The minister would have the power to strip that refugee of his or her permanent resident status if it were determined that circumstances had changed in the country from which the refugee escaped. That is unacceptable. People come to this country seeking safety and yet they find themselves, under this legislation, perhaps looking at being stripped of that status.

I would like to move the following amendment. I move:

That the motion be amended by deleting all of the words after the word “That” and substituting the following:

this House declines to give second reading to Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act, because it:

(a) places an unacceptable level of arbitrary power in the hands of the minister;

(b) allows for the indiscriminate designation and subsequent imprisonment of bona fide refugees for up to one year without review;

(c) places the status of thousands of refugees and permanent residents in jeopardy;

(d) punishes bona fide refugees, including children, by imposing penalties based on mode of entry to Canada;

(e) creates a two-tiered refugee system that denies many applicants access to an appeals mechanism; and

(f) violates the Canadian Charter of Rights and Freedoms and two international conventions to which Canada is signatory.

[Greg Nordal]

If Bill C-11 goes through unamended, we're actually inviting this as an exception.

It will confuse. It already is confusing, as I mentioned to folks, today.

When you think of the CCH ruling, the Copyright Board and the Federal Court of Appeal have both said that what's happening with multiple classroom copies is not fair, and that is now going to the Supreme Court. That's eight years of litigation.

One might say, well, what is eight years of litigation? Well, in the digital age and with the amount of investment we make, that's a lifetime. That's a lot of curriculum that may not be supported. That's a lot of investment dollars. That's a lot of authors not sure whether they should do the actual work.

Even since CCH, we still have the Federal Court of Appeal ruling on what is fair. It's still out there, notwithstanding CCH. We don't know where that's going to go. If you include fair dealing for education as an exception, to me that's an invitation, and it will clarify in the minds of tens of thousands of school teachers, who will say, “I guess it's okay now.”

Again, we already have—

[Greg Nordal]

We've had over 30 universities and colleges walk away from licensing in higher education right now. There are 30. The two universities that signed recently—U of T and UWO—are being absolutely criticized and assailed in the media, vilified, for doing this. They are being asked if they understand that Bill C-11 will make this much easier and cheaper to access. That's why it offends me to suggest that this isn't going to have an impact on our market. It's happening today.

[Greg Nordal]

Yes, that is correct. Right now it's far too open to interpretation. We literally have customers today, literally today, who are walking away from our existing licence agreements because they believe that Bill C-11 will make these materials free. They are asking why they would sign a licence agreement. That is today.

[Mary Hemmings, Chair, Copyright Committee, Canadian Association of Law Libraries]

Thank you for inviting the Canadian Association of Law Libraries, L'Association canadienne des bibliothèques de droit, to present its position to this committee. My name is Mary Hemmings. I am chair of the copyright committee for CALL, or ACBD. I am adjunct professor and chief law librarian at Canada's newest law faculty, at Thompson Rivers University. I'm in a unique position for a law librarian. Not only am I teaching legal research at a time of digital change, but I am also starting a new law library when the landscape of the printed word has tilted on its axis. I still buy books. In fact, I buy a lot of books. But I also buy digital collections from many different sources, national and international.

CALL represents approximately 500 academic, private, corporate, court, law society, and government legal professionals working across Canada. We buy legislative documents, case reports, and materials that comment on the law. We provide access to these materials to such people as lawyers, judges, students, faculty, parliamentarians, and the public. And of course we help people find what they want, whether or not we have it in print or locked in a database.

CALL members support these efforts to modernize copyright legislation. We view these changes as necessary to preserving the balance of rights to copyright owners, to libraries, and to the users of legal information in a digital environment.

Today I would like to discuss three areas of concern to the law libraries: fair dealing, crown copyright, and TPMs, also known as digital locks.

Respect for fair dealing is essential to CALL's submission to this committee. Fair dealing and user rights have been discussed by other individuals and associations appearing before this committee, and CALL supports the positions taken by such advocacy groups as libraries, museums, and archives. As law librarians, CALL members are particularly concerned about the fair dealing provisions proposed by Bill C-11.

On the issue of fair dealing, I would like to draw your attention to the 2004 Supreme Court decision in CCH. The library of the Law Society of Upper Canada, whose professionals are members of CALL, is only one of a network of courthouse and law society libraries across Canada, and they were involved in that particular case. It goes without saying that our members support that decision, particularly in its six-step approach to determining fair dealing. We regard fair dealing not as an exception to copyright, but rather as a balanced means of recognizing that limited and fair reproduction is a tool in scholarly discourse. Just as I would lend a book or copy of an article to a friend working on a similar project, the process of sharing information in research and education is not a criminal activity. It is the way that ideas are communicated. We therefore commend the recognition of this principle in Bill C-11.

Having said that, there are other sections of Bill C-11 that appear to contradict the spirit of fair dealing, and in particular the role of libraries. Libraries lend materials to other libraries. This is a fundamental point in our business of meeting the information needs of our users and does not require legislative restrictions on the practice of inter-library lending. Once material has been given to a patron, I am not sure how a lending institution can reasonably comply with the proposal that it must “take measures to prevent” the user from actually making a copy, lending it to a friend, or even dropping it in a bathtub.

Bill C-11 focuses on the use of digital copies. Technically speaking, a digital copy of a book, an article, legislation, or a reported case can be made anytime, anywhere, by anyone. Libraries, archives, or museums should not be held accountable for behaviour that is not similarly policed in book stores or on the Internet.

The Copyright Act should integrate the concept of fair dealing as a user right rather than as an exception to copyright. It should be made explicit that fair dealing needs to be given a broad and liberal interpretation and that knowledge institutions such as libraries, archives, and museums serve a wide variety of institutions.

The CCH decision did not distinguish between a non-profit and a for-profit library. In fact, the CCH decision ruled in favour of the Law Society library, which directly serves the needs of the bar association. Whether or not lawyers make a profit, profit was explicitly considered immaterial in that decision.

On the issue of crown copyright, over a long period of time there have been calls for revisions of section 12 of the Copyright Act. This section relates to crown copyright, and it needs to be explicitly addressed in Bill C-11. The Reproduction of Federal Law Order allows citizens to reproduce federal legislation for personal, non-commercial uses. This is precisely the initiative law libraries want to see in this legislative language. The government has a duty to disseminate the information it produces.

CALL recognizes that producing current government information is expensive, but not as expensive as it once was. At one time, producing and distributing print legislation and parliamentary documents needed editing, typesetting, copy checking, and elaborate distribution methods to satisfy the public demand for access to legislation. Now, digital production ensures accuracy in content, speed in delivery, and a proactive approach to getting government information out to Canadians.

Missing in this equation are the historical legislative documents that are so necessary for legislators and the legal profession if they are to understand how current laws came to be. Retrospective digitization of crown documents is expensive, yet Canadians should also enjoy unrestricted access to documents that inform the present day.

We agree that Canada needs an updated copyright regime that protects creators and rights holders. However, we strongly urge the government not to restrict the public's right to access what should be in the public domain.

Legal writers have urged that crown copyright reform is long overdue, not only in light of the CCH decision, but also in recognition of today's responsive federal government practice. However, crown copyright has been overlooked by all proposed amendments, long before 2005. Our position is that these materials be maintained as free resources and that the government consider funding a program of retrospective digitization.

This finally leads me to digital locks. They have been characterized as a digital threat to fair use, primarily because TPMs cannot distinguish between lawful uses and users. I wanted to draw your attention to the nature of the relationships we have with publishers and library users. At the forefront is not the issue of what our patrons choose to do with the materials they borrow, but rather the ability of commercial or government providers to capriciously lock down legitimately purchased materials. Libraries are now dependent on digital materials. Database providers or digital publishers often have exclusive rights to sell particular content, and libraries have a mandate to meet all of the research and educational needs of their users. It's rarely possible for us to purchase the same content from a competing vendor.

Our users want to be able to transfer content to portable devices for use in courtrooms, classrooms, and in the home, and users of legal information who are not affiliated with a library, such as self-represented litigants, members of the public, and some students—including lifelong learners—are being deprived of access to the law because of licensing restrictions. Such information, previously provided in book form on an open library shelf, now lies on the other side of a digital divide.

In conclusion, we just want to say that fair dealing is a user right, crown copyright is lost in the 19th century, as we see it now, and digital locks are both evil and good.

Thank you.