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.

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

But Bill C-11 would allow that to occur, correct?

[Andrew Cash, NDP, Davenport, ON]

What would be some of the ramifications—maybe you could just map them out in a general way—if this exemption were to hold? In other words, if amendments weren't made to Bill C-11 to reflect some of the concerns you have, how would that affect your community and other communities in the real world?

[Marc Workman]

I think there's an opportunity to remove the limitation that exists in the current Copyright Act. Right now, the way Bill C-11 is written, that opportunity isn't being taken advantage of. You have to obtain permission every time you want to convert an inaccessible film into an accessible one by adding descriptive video, so I think the issue here is one of lost opportunity.

[Brian Boyle]

In summary, even with our amendment, Bill C-11 awards much broader usage rights for commissioned photographs than for any other copyrighted creation in Canada. Our technical amendment will protect against cases where unlimited usage rights are causing significant financial harm to men and women in small businesses. In other words, with our amendment, Bill C-11 creates a balance between a consumer's ability to use copyrighted work, and a creator's right to earn a living.

Thank you.

[André Cornellier, Chair of the Copyright Committee, Canadian Association of Professional Image Creators]

Good afternoon.

Before I begin, I would like to thank the committee for the opportunity to be here today and the government for including photographers in Bill C-11. That is a very important move, and we are grateful.

I notice that we are in an ideal room, since, right in front of me, I can see the following sentence:

“The spirit of the printed word”, and to show the spirit of the printed word there's an image. I guess an image is worth a thousand words.

In addition to awarding first ownership in copyright to the creators of photographs, Bill C-11 also proposes a new provision, section 32.2(1)(f), which provides individuals who commission photographs, for private or non-commercial uses, broad rights to reproduce these photographs.

We support allowing the commissioner and their family reasonable usage of photographs commissioned for private purposes, particularly in social media.

However, we are very concerned that Bill C-11 does not define non-commercial purposes. We believe this omission will significantly harm small business photographers' ability to earn a living and generate economic growth.

Without defining non-commercial purposes, it allows some unintended reproduction of commissioned photographs that could have financial implications for photographers. This fundamentally alters what should be a balanced approach between the rights of users and the rights of photographers to earn a living. The heart of this imbalance is that users may choose to reproduce the commissioned photographs for purposes that to the user are non-commercial but that have significant commercial implications for the photographer. In these cases, the term "non-commercial" has very different meanings to the artist and the commissioner.

Let's give you an example.

Look at the back cover of your brochure for a second. A photographer is commissioned to photograph a landscape of Port aux Basques in Newfoundland. Under the bill, the commissioner is permitted to reproduce this photograph for private and non-commercial purposes. Mailing a copy to his son, hanging a copy on his cottage wall, or giving a copy to his grandmother who grew up in Port aux Basques—these activities would not have a substantial financial impact on the photographer.

However, if that photograph were to be reproduced several hundred times, it would have serious commercial consequences for the photographer, even though it might be a non-commercial practice for the commissioner. It would affect the photographer's future earnings, because he would not be able to sell similar photographs of the same landscape. All the photographer's potential customers would already have a free copy of the photograph.

To correct this imbalance and in order to clarify what is meant by non-commercial, we have presented a small, technical amendment that reflects the spirit of Bill C-11. In fact, it is drawn from clause 29.21(1) of the bill, called “Non-commercial User-generated Content”, which Bill C-11 seeks to add to the legislation. The wording of our amendment is on page 2 of the backgrounder that you have before you.

This amendment allows for the broad use of commissioned photographs. It also limits only those uses that would have a substantial financial impact on photographers. It sets parameters to ensure non-commercial practices, as perceived by the commissioner, do not have substantial commercial implications on photographers.

However, this amendment supports the desire of the government and consumers to have fair access to their commissioned photographs. We do not believe our amendment alters the intent of the provision; it simply helps provide some clarity to non-commercial uses.

Mr. Boyle.

[Marc Workman, National Director, Alliance for Equality of Blind Canadians]

Thank you, Mr. Chair.

I want to begin by thanking the committee, on behalf of the Alliance for Equality of Blind Canadians, for inviting us to appear. We very much appreciate the opportunity.

My name is Marc Workman. I am the national director with the AEBC. The Alliance for Equality of Blind Canadians is a national organization made up primarily of blind, deaf-blind, and partially-sighted individuals. We advocate on a wide variety of issues at the local, provincial, and national levels. If you want to learn more about us, you can visit our website at blindcanadians.ca.

Copyright legislation and its reform is of deep importance to blind Canadians. Access to printed material, much of which is protected by copyright, is one of the key barriers that prevents blind Canadians from fully participating in Canadian society. That said, if it were up to us, blindness would have nothing to do with this discussion. I would rather not be here today representing blind Canadians. I would rather not rely on an exemption that allows me, the people I ask, or the non-profits working for my benefit to create alternative format versions of inaccessible copyrighted works. Instead, I and other blind Canadians would prefer to borrow books from libraries, just like our sighted counterparts. We would prefer to purchase books from online and bricks-and-mortar bookstores, just like our sighted counterparts. In short, we want to be able to access copyrighted works, just like our sighted counterparts.

Unfortunately, blind Canadians cannot do this today. Less than 10%—and some would say less than 5%—of printed material is available in an accessible format. Those few accessible versions exist only because inaccessible materials are reproduced in an accessible form.

I want you to keep these points in mind as you listen to my recommendations. These recommended changes are necessary only because publishers and copyright holders are creating products that could be, but are not accessible to blind Canadians. Genuine access requires not an exemption, but a commitment on the part of copyright holders and publishers to make accessible products. To sum this up, we do not want to rely on an exemption; we have to rely on one. Because of that I urge you to make the exemption as effective as possible by adopting the recommendations I'll make during the rest of this presentation.

Recommendation one has to do with technological prevention measures, or TPMs. While we support the exemption in proposed section 41.16 of Bill C-11, which permits the circumvention of TPMs for the purpose of producing alternative format versions of copyrighted works, this right to circumvent TPMs for all practical intents and purposes will not be one that the average blind Canadian can exercise.

Breaking the digital lock on copyrighted works is almost certain to be beyond the means of the average blind Canadian. Not only is some level of technical expertise required, which many blind Canadians will not possess, but there is no guarantee that the circumvention tools themselves will be accessible, even to the most tech-savvy of blind Canadians.

Moreover, circumventing TPMs places a burden on those organizations that produce alternative formats for the benefit of blind Canadians, so these organizations will have to hire and maintain staff with the technical expertise to break the digital locks. Even though proposed subsection 41.16(2) of Bill C-11 also provides an exemption to those offering services or manufacturing products for the purpose of circumventing TPMs in order to produce alternative formats, that exemption is granted only to the extent that the services or tools do not unduly impair the technological protection measure. It's not clear exactly what it would mean to not unduly impair a TPM, and the ambiguity concerns us.

Given the general restrictions on circumventing TPMs, we believe it's unlikely that the necessary tools will be widely available and readily accessible to blind Canadians and the organizations working on their behalf. The AEBC recommends, along with many others—and we've heard discussion here today—that the restrictions on circumventing TPMs be tied to actions that would otherwise be violations of copyright. Not only is this balance better for Canadian society in general, but we believe it's the best way to ensure that blind Canadians have access to the tools necessary for them to access copyrighted works, for which they have a legal right to access.

Without this change, the right of blind Canadians to circumvent TPMs to produce alternative formats will almost certainly be a right that few of us can exercise.

Recommendation two has to do with the for-profit production of alternative format materials. Currently section 32 of the Copyright Act exempts only non-profits from having to obtain permission from the copyright holder in order to produce an accessible version of the copyrighted work. As I said, though, under this system, only a small fraction of copyrighted works are ever converted to an accessible format. There is, however, a growing industry of for-profit companies that are involved in the production of accessible formats. The AEBC recommends removing the limitation to non-profits in the exemptions in both the Copyright Act and Bill C-11. We believe this will lead to a significant increase in the availability of alternative format versions of copyrighted works.

Recommendation three has to do with sending alternative formats outside of Canada. The AEBC applauds the attempt to clarify our laws with respect to sending alternative formats outside of Canada. This brings us one step closer to realizing an international agreement that will increase the cross-border exchange of alternative formats. Importantly, this will significantly reduce the duplication of work that's taking place around the world, by which I mean different countries producing the same work in alternative formats.

However, in clause 37 of Bill C-11, proposed paragraphs 32.01(1)(a) and (b) limit the ability of organizations to send alternative formats to other countries. It's limited to those cases where the copyright holder is a Canadian citizen or is a citizen of the country to which the materials are being sent. This limitation places a burden on those organizations that would exchange alternative formats across borders. It forces them to have to establish citizenship before they can send an alternative format outside Canada, but also restricts the number of works that can possibly be exchanged.

The AEBC's recommendation is that the only restrictions be, one, whether the work was legally produced in Canada and could legally be produced in the country to which the work is being sent; and two, whether the work is already available in an accessible format in the country to which the work is being sent. We believe those two criteria should determine whether a work could be sent outside Canada. This would reduce the burden on organizations that send these works to other countries and would dramatically increase the number of works that could be sent.

Recommendation four has to do with large print. Subsection 32(2) of the Copyright Act limits the scope of the section 32 exemption by excluding the making of large-print books. This limitation harms print-disabled Canadians of all ages, but is particularly harmful to older Canadians. This will only become more of an issue as the population ages, and more and more Canadians experience sight loss and become reliant on large print. The AEBC recommends that this limitation be removed from the Copyright Act.

The fifth and final recommendation has to do with the adaptation of cinematographic works. Paragraph 32(1)(a) of the Copyright Act also limits the usefulness of the section 32 exemption by excluding the adaptation of cinematographic works to make them more accessible. We believe this limitation is partly responsible for the extremely limited availability of films that include descriptive video.

For those who don't know, descriptive video is an audio narration of the action that's taking place on screen, which enables blind people to better understand what is being communicated by the film.

The AEBC recommends that this limitation also be removed from the Copyright Act.

Lastly, similar limitations concerning large-print production and the adaptation of cinematographic works are contained in clause 37 of Bill C-11. This clause has to do with sending alternative formats outside of Canada. In proposed subsection 32.01(2), large-print materials and cinematographic works are excluded from the exemption. We believe this subsection should also be removed.

I suspect that my time has nearly run out, so I will end it there and take any questions afterwards.

Thank you.

[Andrew Cash, NDP, Davenport, ON]

Thank you.

Professor de Beer, you mentioned that aspects of Bill C-11 risk encroaching on provincial jurisdiction. I'm wondering if you could just flesh that out a little bit.

[James Gannon]

Absolutely, and Professor de Beer touched on this as well. One of the really great things that I love about Bill C-11 and the TPM protections contained therein is the regulation-making power.

This is something that we haven't seen anywhere else in the world. It's probably one of the most flexible models we see, in that if there's a particular TPM that's really constraining economic activity, the bill lets the government officials and the Governor in Council enact a regulation that says, “All right, that particular TPM will not be protected, and we're allowed to circumvent that”. Or even if there is a particular rights holder who is using TPMs in an anti-competitive way, or in a way that is restricting fair dealing, the regulations allow the government to compel that rights holder to remove that digital restriction or to allow people to make the circumvention of that technology.

It's very flexible, in that if the marketplace adapts in a certain way, the government can react as well and can pass regulations that will allow businesses to flourish instead.

[Prof. Jeremy de Beer]

If you look at the comparative analysis, the New Zealand legislation is substantially different from what's in Bill C-11 already. It repeatedly references links to technological protection measures that protect copyright, not public domain works, and circumvention for lawful purposes being legitimate. It also mandates a consumer right of access where technological protection measures apply.

The Swiss example is much simpler. It's a shorter provision that basically says none of the prohibitions against circumvention apply where the purpose is a lawful purpose. So it's much simpler. It would be easier to put into Bill C-11.

I like the New Zealand legislation a little bit better. I think it strikes a better balance between protection and competition.

There's a third option that I think is very important should this committee wish to consider it, and that's by elaborating in proposed section 41.21 where the Governor in Council has the power to make regulations. Currently this legislation goes beyond what's in the Digital Millennium Copyright Act in the United States, which has a triennial review process for allowing exceptions to permit circumvention. This bill just basically says the Governor in Council “may” do that.

So one of the things that at minimum this committee could do would be to mandate the Governor in Council to enact regulations providing the same kinds of exceptions as currently exist in U.S. law, as at least a starting point.

[James Gannon]

Sure. As I said, right now Bill C-11 contains four exceptions that relate to software-specific or computer-related things—such as encryption research, security, interoperability, and the fourth one....

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

You also stated that the United States has already implemented or updated their copyright legislation. Their publishing industry, particularly in the area of educational materials—I'm a former educator, so that's why I'm focusing on this—is more free-dealing, the way they have it structured, than what we have currently in Bill C-11. You say that has not negatively impacted their sales and they have done very well with the educational market, I guess one would say.

Really, then, the current legislation, as written in Bill C-11, should not pose any threat to the greater educational publishers in Canada?

[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.

[Professor Jeremy de Beer, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

Good afternoon. My name is Jeremy de Beer. I'm an associate professor in the faculty of law at the University of Ottawa.

My research focuses on law, policy, and business issues related to intellectual property, technology innovation, and international trade. I teach, among other things, courses on global intellectual property policy and the digital music business. I'm also a practising lawyer who has worked with copyright stakeholders of all kinds, from creators and producers to intermediaries to end users and consumer groups. Before becoming a professor, I was the legal counsel for the Copyright Board of Canada. That's the economic regulatory agency responsible for the administration of copyright in Canada.

That said, all the views I'm going to express today are my own and are based on my scholarly research and my professional experience.

The Government of Canada should be congratulated for its commitment to copyright reform, and I, like many other Canadians, look forward to the eventual passage of Bill C-11, the Copyright Modernization Act, into law. This committee's work in that context is extremely important, and I'm grateful for the opportunity to participate in the process of making Canada's copyright laws among the most appropriate and effective in the world.

Because I'm not here today representing any particular organization or any particular perspective, I'm not asking this committee for any specific amendments to the bill. However, in an effort to facilitate evidence-based policy-making, I hope this committee will draw its own conclusions about the appropriate course of action suggested by my research and experience.

If I may, I would like to discuss two aspects of the Copyright Modernization Act that have attracted attention from various stakeholders throughout the copyright reform process. The first relates to the provisions regarding technological protection measures in the proposed sections 41 to 41.21, and the second is the addition of the words “education, parody or satire” in the proposed new section 29. I would be pleased to address other issues during the question period, if you would permit me to.

There's no doubt and little controversy about the fact that international treaties to which Canada is a signatory require reforms to provide adequate protection and effective legal remedies against the circumvention of technological protection measures. The only real question is whether Canada ought to adopt the approach taken by some countries, such as the United States, or the approach taken by other countries, such as Switzerland and New Zealand. This is a difficult policy decision.

While there are differences between the anti-circumvention provisions in Bill C-11 and the anti-circumvention provisions in the American Digital Millennium Copyright Act, these approaches are similar for failing to link liability for circumventing technological protection measures with an act of copyright infringement, so Bill C-11, as it's currently proposed, could prohibit the circumvention of technological protection measures even if those measures are applied to materials in the public domain or even if the purpose of the circumvention is a lawful purpose, including the exercise of rights that are provided elsewhere in Bill C-11.

In contrast, recent reforms in Switzerland and New Zealand link circumvention provisions with copyright protection and with copyright-protected works.

My research suggests that there are four reasons to be concerned about the approach currently proposed in Bill C-11. I have provided the committee clerk with copies of some of my relevant publications and I understand these will be translated and distributed to you. Those documents explain the conclusions that can be drawn from this body of research in more detail.

First, this model of anti-circumvention provision is conceptually and pragmatically inconsistent with other parts of Canada's existing and proposed legislation, specifically with rights to engage in private copying under part VIII of the Copyright Act as well as other provisions in the bill. My research contrasting Canadian and American law related to private copying and technological protection measures suggests that if private copying is otherwise allowed by virtue of a levy or other provisions, it ought to be lawful to exercise private copying rights irrespective of the presence of a technological protection measure.

Second, my research shows that there are serious unresolved legal questions about the constitutionality of anti-circumvention provisions if those provisions do not reflect the fundamental contours of copyright as that term is defined in the Constitution Act of 1867 in dividing jurisdiction over matters between the federal and provincial governments. Regulation that is in pith and substance about private contractual matters or technological protection measures trumping the balance of rights established by copyright law risks being invalidated as an intrusion into areas of provincial jurisdiction. The Supreme Court's recent ruling in the securities reference reinforces a risk that under the approach proposed in Bill C-11, these reforms could be ruled unconstitutional. As a worst-case scenario, the baby could be thrown out with the bathwater.

My research suggests that narrowing the provisions to permit circumvention for lawful purposes substantially reduces that risk. It virtually guarantees that the legislation will be upheld as constitutional.

Third, my research suggests that strict anti-circumvention provisions would do little to help Canadians exploit the potential of new markets based on open innovation, collaboration, and peer production, which are identified by many experts in business and management schools as the most promising avenues for economic growth, innovation, and productivity over the coming decades.

Evidence suggesting the contrary—that is, that anti-circumvention provisions are needed to enable new business models—does exist, but it's so far theoretical rather than empirical. Moreover, the research that does exist, the empirical research, suggests that strict anti-circumvention provisions risk the unintended consequence of counterproductively stifling competition by tying digital content to particular platforms, devices, and distribution models. That's a risk that, if possible, I think Canadians want to avoid.

Fourth, my most recent data shows that the majority of experts who have published research about anti-circumvention provisions are not supportive of a model that fails to link circumvention liability with copyright infringement. In a thorough, systematic, and objective overview, I and a team of researchers reviewed almost 1,500 articles published in various databases on this topic.

Our review of approximately 1,500 articles revealed that only a tiny fraction—10%—concluded that they were supportive of anti-circumvention provisions. Thirty-four per cent of authors of these studies were neutral, while 56% of authors in publications such as these were unsupportive of this particular model of anti-circumvention law.

So while this empirical data can't be interpreted to conclusively represent public opinion, or even the views of all stakeholders, it does indicate a substantial consensus among experts who have published research on this topic. The data provided to support that is in the documents that I've circulated to the clerk.

In light of this evidence, the committee may wish to consider whether the approach taken toward anti-circumvention in New Zealand or Switzerland is a more appropriate model for Canada to follow. I would be pleased to provide you with more specific details about how precisely that can be done if the committee wishes to do so.

Before that, the other topic I would like to mention very briefly concerns the implications of adding the words “education, parody or satire” to section 29 of the act, and especially the word “education”. I understand that some stakeholders have expressed worries that these words are too vague and will lead to significant litigation and reductions in revenues collected by authors and publishers of educational materials.

First, if indeed there were extensive litigation required to interpret the scope of the new provision, then it's arguably impossible to conclude yet whether there will be any effect—negative or positive—on royalty payments and revenues in Canada. I can testify as former legal counsel to the Copyright Board of Canada, which is tasked with regulating economic aspects of copyright such as this, that any royalty structures that emerge will be fair and equitable.

I can also testify that the possibility of litigation over the meaning of these new provisions is not a sound basis on which to reject their inclusion in Canadian copyright law. In fact, if there's anything we can predict with certainty, it's that many of the provisions in Bill C-11 will be tested in courts. That's to be expected.

I'm not suggesting that it would not be helpful for Parliament to provide courts with guidance: for example, on factors that it considers relevant to the fairness of any particular dealing with a copyright-protected work. But in my professional experience, I can suggest that it would be dangerous and inappropriate to entrench too much specificity into the definition of categories that must, by their nature, be flexible and fair.

Again, thank you very much for the opportunity to participate in this process. I look forward to elaborating on these issues or responding to any questions.

[The Chair, NDP, Glenn Thibeault]

Good afternoon, ladies and gentlemen and members. Welcome to the third meeting of the committee studying Bill C-11.

We want to remind all members that as part of our first meeting we asked to have all these meetings televised, so I'm expecting you to be on your best behaviour.

With that, I'd like to start by introducing our witnesses today. We have Mr. de Beer, an associate professor at the Faculty of Law at the University of Ottawa; Mr. Trosow, an associate professor at the University of Western Ontario's Faculty of Law and Faculty of Information and Media Studies; and Mr. Gannon, a lawyer at McCarthy Tétrault. Welcome, gentlemen.

I believe we'll start off with 10-minute presentations. I'm giving you my very friendly and nice warning now that at 10 minutes I will step in and unfortunately cut you off if you haven't wrapped up by that time.

We'll start with the first person on the list. Mr. de Beer, if you're ready to get under way, please go ahead.