This bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.
Christian Paradis Conservative
This bill has received Royal Assent and is now law.
This is from the published bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
Andrew Cash NDP Davenport, ON
All right. That's okay.
Back to Mr. Lawford for a second, what kinds of immediate issues will consumers face under this digital lock and anti-circumvention regime in Bill C-11?
Peter Braid Conservative Kitchener—Waterloo, ON
Is there anything in Bill C-11 that creates a situation where a consumer pays for something more than once?
Peter Braid Conservative Kitchener—Waterloo, ON
The intent of Bill C-11 is to target those enablers.
There is the attempt at tools. We believe those tools will enable isoHunts to get away with impunity and will force Bob to take them to court. And they know that Bob's not going to do it. He's a small-business guy. He does not have the means to do that every single time. So I think they can get away with their business model if Bill C-11 doesn't specifically target those enablers. As Bob says, it's not the YouTubes or the Facebooks of the world. They are great business partners.
Peter Braid Conservative Kitchener—Waterloo, ON
Sir, there are tools and mechanisms in Bill C-11 to deal with piracy theft, are there not?
The structure of the current law allows those BitTorrent sites—at least that's what they are claiming—to get away with posting copyrighted material without the fear of strong litigation or fines against them. The fact that isoHunt has just said in their defence claim in response to a lawsuit in Canada that the laws in Canada allow them to do this and that and therefore what they are doing is legal demonstrates how many holes our law has.
With regard to the copyright bill before us, without that take-down notice or something similar, a strong mechanism to actually tell them they need to take this offending material down or this material that is infringing on other people's rights down, they are going to keep using this business model.
The fact that Megaupload and these others are looking at bringing more piracy into Canada because of our weak laws is a problem, and it flies in the face of what Bill C-11 is trying to do.
Bob.
February 29th, 2012 / 4:10 p.m.
Executive Director, Canadian Artists Representation Copyright Collective Inc.
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.
Well, I would take a step back and look at the principle of the matter. Who owns that material? It's the right of the copyright owner to say “Yes, you may use my song” or “No, you cannot”.
I'll give you an example of how it works perfectly. On Sunday night at the Oscars, Billy Crystal opened up the Oscars with a montage of songs to celebrate the nine films that were up for best picture. It was great, funny. They changed the lyrics, they used the music, and it was wonderful. But he wanted to use several different songs for that montage, and the copyright holders of those songs at that point said “No, I don't want you to use it for that purpose”. Billy Crystal said that was fine, and he moved on to the next song, no harm, no foul, and the montage was brilliant.
But the point is, that system respects the copyright holder, and that's how it should work. But with Bill C-11, if you add the exception for parody and satire, that respect for that moral right or the making available right is gone.
Janice Seline Executive Director, Canadian Artists Representation Copyright Collective Inc.
Good afternoon.
I thank you for this opportunity to speak as a member of the visual arts sector. I'm accompanied by Adrian Göllner, who's the past chair of my organization and a practising visual artist himself. We agree that copyright reform in Canada is long overdue.
I work for a collecting society, Canadian Artists Representation Copyright Collective Incorporated, CARCC, representing about 850 visual artists in matters of copyright. In 2010-11 we distributed over $200,000 in royalties to our affiliates, and we have had years when the total distribution has surpassed $500,000. Our affiliates are grateful recipients of royalty income. CARCC operates on money it earns from licensing.
I believe that as we work to reform our Copyright Act we need to remember our principles. Copyright is very ancient, surely older than the Greek playwright who felt hard done by when his plays were presented without his being paid. That copyright is old simply means that it is integral to creation. Artists must have copyright, and copyright must work for them.
Normand Tamaro, a lawyer, has said that the purpose of copyright laws is to provide a fair and civilized environment for the exploitation of creators' works, and artists must be allowed to negotiate compensation on favourable terms for uses of their works. Copyright laws include moral protections for a creator's reputation. Lately the young artist K'naan, invoked his moral rights when he told the Mitt Romney campaign to stop using his song Wavin' Flag. He did not want to be associated in any way with that campaign and he put a stop to it in a public way. His indignation came from that very old place, his droit d'auteur, his author's right.
CARCC is a member of CISAC, the International Confederation of Societies of Authors and Composers, the multidisciplinary association of copyright collecting societies, and its subgroup, CIAGP, the International Council of Creators of Graphic, Plastic, and Photographic Arts. Both these organizations have expressed dismay by letter to Canadian officials at the threats to artists' incomes posed by Bill C-32, and by extension the identical Bill C-11. They are concerned that Canada will lag further behind in its international obligations to harmonize its laws with those of other countries.
A recent report from CISAC summarized the global revenues for collective licensing--this is worldwide--from 2010 at over 7.5 billion euros. This is a lot. Canadian artists must partake of this vital economy.
Here are our specific concerns with Bill C-11, which I will summarize first in case I run out of time. The first one is that while we are pleased that photographers' rights are improved in Bill C-11, we feel that photographers will continue to be disadvantaged by the exception that allows clients to commission photographs to use for private and non-commercial purposes. The second is we would like to see the exhibition right extended to cover the term of copyright, dropping the June 1988 limitation. Third, we would really like to see an artist's resale right included. I think everybody's very enthused about that. We would support levies on digital hardware to cover private copying, and we do not support fair dealing exceptions for education, satire and parody, or mash-ups. Licensing activity in the education sector should be encouraged.
Here's the reasoning behind our concerns. Photography is a form of visual art, and we are thankful that Bill C-11 extends the rights of photographers. However, an exception specifically naming photography, clause 38, has been added, whereby the person who commissions a photograph is allowed to copy for private or non-commercial purposes. The photographer would earn from such copies, and the exception would deprive him or her of income as well as control of the quality of a copied image. We recommend that photographers be treated equally with other visual artists.
Second, Canada's Copyright Act includes an exhibition right that allows artists to require payment for the exhibition of their works if the purpose of the exhibition is not the sale or hire of the works exhibited. The exhibition right was enacted in 1988 and applies to works created after that date of enactment. We would like to see the 1988 date dropped and the exhibition right extended to include all works subject to copyright--that is, life plus 50 years. This would end discrimination against senior artists and the estates of deceased artists, which are often presently excluded. This could easily be put into effect in Bill C-11, and we strongly recommend this action.
Third, Bill C-11 could be vastly improved by the addition of the long overdue artist's resale right, the droit de suite, to the Copyright Act. Resale royalties are percentages of sales of works resold on the secondary market, such as auction sales. They are usually managed collectively. Resale rights benefit artists who have sold their works, often at a low price, only to see them fetch much greater sums later on or in foreign markets. Aboriginal artists and senior artists are the most affected. Some 59 countries around the world have this right included in their legislation. Without the resale right in Canadian legislation, there can be no reciprocity with countries such as France or Britain, and Canadian artists cannot benefit from secondary sales abroad.
The resale right deserves consideration here and now in Bill C-11. Existing collecting societies such as CARCC are ready and willing to take on the administration of the artist's resale right, and there is worldwide evidence that the resale right has little to no effect on art markets.
Fourth, the fair dealing exception for education—as well as all of the exceptions for education, and in particular those pertaining to the Internet—that are detailed in Bill C-11 generally weaken creators' capacity to earn from the reproduction of their works. Creators, including publishers, benefit from the many uses that this enormous sector makes of their works. Creators are the content providers for Canadian culture. Rights holders are paid at the time of publication as well as through collective licensing of reprography, which is used by photocopy.
We believe that collective management has a strong role to play when copies of works are used. Users can use at will as long as they pay for a licence and creators are paid. Reprography must be extended to digital uses and to the Internet. Licensing must be allowed to develop and flourish in this education sector. The education sector should count on paying those who provide its content, as they do those who teach and all the other workers. If they don't, the content will wither and die. Copyright supports culture and national identity.
To add education to fair dealing provisions is to invite litigation and to force creators to defend themselves against claims of fairness on the part of users. Many activities can be called educational. To expect creators and collecting societies to contest every fair dealing claim that comes from a museum or a business, not to mention schools and universities, is to place a very heavy burden upon those who would benefit from copyright. It takes years of unnecessary and expensive litigation to clarify a fair dealing exception, and the judges may well decide that non-payment of rights is indeed unfair to creators. Education really should be removed from fair dealing.
Sixth, the Internet is not the future; it is the present. It's a form of publication that's becoming increasingly important, indeed replacing ways in which copies were made and distributed in the past. It presents huge opportunities. Creators must be allowed to benefit, when their works are used privately, when they're copied from device to device.
A levy on digital hardware similar to that already in place on recordable media would be a fair solution to the problem of payment for private use. The levy is fair payment for something that people actually use—content—without which their shiny devices aren't fun at all.
Besides the economic benefit to creators, there are benefits to users as well. A levy allows people to use with a certain freedom, with no threat to their privacy. It does not replace investigation of the truly criminal activity that is piracy. Law enforcement should take care of that, not the service providers.
Bill C-11 proposes fair dealing exceptions for parody and satire and mash-ups—that is, non-commercial user-generated content. The effect of these exceptions is on the one hand to weaken creators' moral rights, which protect their reputations, and to encourage a culture of entitlement on the other. Canadian satirists have flourished without an exception to copyright. There are still many norms that satirists must respect, even if an exception is instituted.
Visual artists who similarly practice appropriation, a practice often shoehorned into parody and satire, have managed well without an exception. Telling these artists that they are free to appropriate under copyright offers them no protection from other forms of prosecution, such as trademark protections or libel. In other countries, parody and satire exceptions have invited protracted, expensive, and inconclusive litigation. We think they should be dropped from Bill C-11.
Stuart Johnston President, Canadian Independent Music Association
Good afternoon, and thank you very much for the opportunity to address you today on what my industry considers to be the most important bill to go before government.
As mentioned, my name is Stuart Johnston, and I'm the president of the Canadian Independent Music Association. Joining me today is one of my volunteers and board members, Mr. Bob D'Eith. He's the secretary of my board, the chair of my government affairs committee, and in his day job he's the executive director of Music B.C., a provincial music industry association. Bob's also an entertainment lawyer, record label owner, and two-time Juno award nominated recording artist.
You should already have our submission on Bill C-11, which outlines our 12 recommendations for improvements to the bill, so we will try to be brief in our remarks.
By way of background, CIMA represents more than 180 Canadian-owned companies and professionals engaged in the worldwide production and commercialization of Canadian independent music, who in turn represent thousands of Canadian artists and bands. They are exclusively small businesses, which include record producers, record labels, publishers, recording studios, managers, agents, licensors, music video producers and directors, creative content owners, artists, and others professionally involved in the sound recording and music video industries.
To put our industry's size in perspective, the Canadian independent music sector, taken as a block, is one of the largest in terms of sales in this country, second only to Universal Music Canada. According to Nielsen SoundScan sales figures, the independent sector accounts for approximately 24% of all music sales in Canada, which is larger than EMI and Warner Music put together and Sony Music by itself. In short, our members are the owners and operators of small businesses who invest in the creation of intellectual property that spurs economic benefits in terms of jobs, increased GDP, contributions to our nation's trade balance, and are an integral component of Canada's culture as expressed through music.
As Canada's economic sectors continue to evolve, CIMA believes that the creation and protection of intellectual property is one of the few potential growth areas for our economy, particularly through exports. We wish to thank you for this process, and for the responsibilities that you are undertaking to ensure that all views are heard and considered before final approval of the bill is given. We are pleased that we will finally see the bill go before Parliament this spring, because we've waited far too long for a new copyright act.
CIMA members and the broader independent music sector in Canada, as noted, are small businesses struggling to survive in a very challenging market, a difficult environment in which to be creative, innovative, make investments, maintain jobs, and earn a living. Therefore, we believe that the modernization of Canada's copyright regime is crucial not only to our sector but to the broader economy as well.
While we support this bill, Bill C-11 has the potential to either be critically important or it could in some ways make an already challenging climate that much more difficult for our independent music sector to survive in, let alone grow and thrive. We shall explain this shortly.
CIMA and its members, while generally supportive of the bill, believe it needs a few amendments, some technical, some more than technical, in order for it to truly reflect the government's stated desire for it to help create jobs, promote innovation, and attract new investment. Most importantly in our view, it must also give creators and copyright owners the tools to protect and be compensated for their work. This last point cannot be understated. If we pull away all of the rhetoric, grandstanding, misinformation, and misunderstanding of what copyright protection really is, it should be self-evident what the real reasons are to have strong legislation in place and how important Bill C-11 really is.
The bottom line is that music is commerce. Music is a commodity. It can be characterized as art in its final form. It can be used to define and contribute to our culture, but first and foremost it is a commodity. Governed by the rules of business, it relies on supply chains, domestic and international trade. It can be bought, sold, licensed, for various uses. It is a business that employs many thousands of people, directly and indirectly.
But somewhere along the way, when music was digitized into a series of ones and zeros, it somehow became okay in some circles to steal it, share it, pass it around, all without consideration as to what harm that is doing to the individuals who invested their time, money, and creative energies into that product, not to mention all of those along the supply chain who contributed to that product being brought to market. They are the artists, their labels, their manager, producers, sound engineers, manufacturers, distributors, retailers, and the list goes on. Fair compensation for a product enjoyed by consumers is required to pay all of those good folks in that supply chain. It really is no different from any other service such as professional services, the IT industry, the auto sector, and mining.
We have rules and law in society that tell us that stealing a car, for example, for personal use or resale is wrong. The same people who illegally download and share a track or album would in all likelihood not be the same people who would go into HMV and walk out of the store with a handful of unpaid CDs. It just doesn't happen. Yet in a virtual sense, that is what is happening on a grand scale around the world and in Canada in particular. This theft of music is being facilitated by certain private sector interests like Canada-based isoHunt, the Sweden-based The Pirate Bay, and New Zealand-based Megaupload, thereby depriving my industry the compensation it deserves, while at the same time they are financially benefiting from this illegal practice.
At the beginning of this year, four of the world's top five BitTorrent sites were connected in whole or in part with Canada. isoHunt yesterday filed claims in a Canadian court that their operations are completely legal, claiming Canadian law makes it completely legal. This flies in the face of the intent of Bill C-11. Canada unfortunately is seen as a haven for these types of digital parasites. According to court documents, even the aforementioned Megaupload considered moving its servers to Canada at one time in order to avoid prosecution.
This is not piracy. That's too fanciful a word, and brings a connotation of Hollywood romanticism. What we are talking about is straight out theft. We need tough rules in place to prevent these so-called wealth destroyers from engaging in and enabling theft. We need a new copyright bill.
My colleague Robert D'Eith will continue with the rest of our presentation.
The Chair NDP Glenn Thibeault
Good afternoon, everyone. Welcome to meeting number 5 of the Legislative Committee on Bill C-11.
I'd like to welcome our witnesses, our guests, and the members, and also just do a quick acknowledgement to all of the members and individuals today who are wearing pink on Anti-Bullying Day. So Mr. Regan and others.... Mr. Braid, you have it on your tie. I'm very obvious with the shirt and the tie. I'd like to acknowledge everyone on that.
February 28th, 2012 / 11:30 a.m.
Policy Analyst, Ontario Public School Boards Association, Canadian School Boards Association
I would certainly say that teachers are extremely aware, largely because of a lot of the public media coverage that Bill C-11 has started to receive, of how under the law their use of copyright materials in the classroom may differ in their professional role from their personal role. That is something on which we've just begun working with our colleagues, the teachers' federations and other educational organizations, to talk to teachers about.
Would I say they are overly cautious? I would say they are overly excited about the new law, because one of the things that has changed is that there are now far more resources available than there ever have been for schools before. Sometimes teachers aren't relying on textbooks. That doesn't mean there isn't a textbook; there is. They are supplementing with information they would not have received before.
February 28th, 2012 / 11:30 a.m.
Policy Analyst, Ontario Public School Boards Association, Canadian School Boards Association
School boards will continue to pay this tariff that allows them to use material in the classroom, and teachers understand what is allowed in that tariff. It is set out not only at every photocopier, but there is a booklet that CSBA and the Council of Ministers have made available for every school board and every school in the country to understand copyright issues. I know those are very widely distributed.
Also, there is nothing in Bill C-11 that will permit blanket copying of resources. It will not allow school boards, instead of purchasing textbooks, to photocopy them. That is not allowed. It has never been allowed and it is not allowed under Bill C-11. We don't encourage it; we actively discourage it, and where it happens, those teachers should be instructed by their supervisors about appropriate classroom resource use.
Unless the boards purchase a licence, which they have to do under access copyright and they may do under various digital resources, they should not be using those materials without permission. That is our position, it has always been our position, and it will continue to be our position.
February 28th, 2012 / 11:30 a.m.
Policy Analyst, Ontario Public School Boards Association, Canadian School Boards Association
I do, actually.
I think it's important to point out that while Bill C-11 provides a legislative framework that clarifies what is allowed and what is not allowed in classrooms, it doesn't substantively change the way we pay for those things.
The Copyright Board has set a tariff for Canadian schools, and it's $5.16 per student currently. We will continue to have to pay that tariff every year per student to ensure we can continue to use print—that tariff doesn't cover digital—materials in the classroom. So that means textbooks.
Mr. Angus was talking about old novels that his son is studying. I'd like to point out that it's a matter of curriculum choices and not a matter of availability.
February 28th, 2012 / 11:25 a.m.
President, Les Éditions Berger, Association nationale des éditeurs de livres
One of the things we need to keep in mind is that most of the current course notes would not be covered by this type of provision because they come under collective management licensing. All of that is based on knowing whether it falls within the limits allowed under licensing or if we must withdraw licences because there is fair dealing for education. Everything sort of becomes up for grabs.
We think that the fact that this provision exists and that it will be controlled by external criteria—the two tests that Ms. Clarke spoke about—will lead people to withdraw from collective management, and so the problem will remain whole. If the problem is much better defined, there will be an entire portion of the rights that will effectively be paid, which will enable the entire education sector to do its work, no problem.
So we are suggesting that, for all these types of excerpts, we strongly maintain these provisions that ensure the survival of collective management and that enable the classes to do this very well. We are suggesting limiting this much more, by using the three-step test to define with much greater clarity what is fair. We must make sure not to have too many courses on the market, particularly community courses, courses offered by language schools or many other courses in the private sector, that benefit from this exception in favour of the needs of the school.
We want to develop a legal offer. We have developed a lot and this is what we are talking about. Currently in Quebec, there are 7,800 digital titles, and that number is constantly growing. We experienced an increase of 1,000% in 2011 alone.
What we are currently putting forward is these provisions to ensure that schools have the materials. We would like the excerpts of the work to not move from platform to platform without permission or royalties. However, we must note that, with the ability to shift formats and with reproduction in class, the new provision of Bill C-11 will make it possible to show complete works in full compliance because they will not be subject to the fair dealing criterion.
Given the jurisprudence, all the provisions together will have a significant impact on the market. It isn't about any one provision, but rather how the provisions are interpreted.
Thank you.