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.

Copyright Modernization Act

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I would suggest it is the hairdressers and set designers, et cetera, that my colleague is talking about who are the ones to end up with charges. Of course, we need to modernize copyright legislation for various industries, like the film and television industries that he talked about. Of course we do, but the way to do it is not at the expense of heavy fines and possible jail time for ordinary Canadians.

I know the author of the letter that I read and that he is part of a working group in Nova Scotia, where there is a very strong video gaming industry, which may be surprising. He is a member of a working group in the community that includes video gamers, who I know, as members of my community, want fair and balanced copyright legislation.

I would invite the parliamentary secretary to come to Halifax any time and I would be pleased to introduce him to these people, who are actually part of the backbone of the Nova Scotian economy. Maybe he could listen first-hand to their advice on how to make this bill better.

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

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

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

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

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

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

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

I will give an example just to illustrate my point.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Mr. Speaker, I think members on both sides of the House would agree that copyright modernization is long overdue but this bill has some glaring problems. The most controversial and worrisome of all is the issue of digital locks. I have received hundreds of emails from across Canada, as well as hundreds of signatures on my online petition. If people google “digital lock freedom”, they will find it.

Does the hon. member agree that the biggest problem of all in this legislation is digital locks, which will lead to huge abuses and possible jail time and huge fines?

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

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

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

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

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

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

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

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

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

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

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

[The Acting Speaker, Conservative, Barry Devolin]

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for London—Fanshawe, Service Canada; the hon. member for Nanaimo—Cowichan, Poverty; the hon. member for Etobicoke North, The Environment.

Resuming debate, the hon. member for Saint-Jean.

[Tarik Brahmi, NDP, Saint-Jean, QC]

Mr. Speaker, before I begin speaking on the substance of Bill C-11, I would like to denounce the methods being systematically used by this government to limit debate. Once again, we are up against a motion that limits the time for debate on this bill. There have been too many to count. I do not know how many the government has moved, but it is becoming a habit. It has become a habit; this government's modus operandi is always to try to limit debate, as though there were some emergency, as though there were a fire, any time a bill is introduced on any subject.

In response to this, the government always says that it has a majority. To my knowledge, 40% of voters does not a majority make.

The government says that it has been given a strong mandate but this is not a strong mandate at all.

The government is using this strong-arm method, but it does not have a strong mandate. Since less than 40% of voters placed their trust in the Conservatives, they cannot use the argument that they have a strong mandate.

Once again, I am disappointed because we are again being forced to cut debate short and we will not be able to explore this properly. As many of my colleagues have pointed out, many of us are new here and would really like the opportunity to express our thoughts on these important issues. Indeed, the bills we are voting on today will have consequences. Many of my colleagues would like to have the opportunity to express their thoughts, without being systematically bullied by this government.

A number of things in Bill C-11 can be criticized. I would first like to talk about the thing that is probably most shocking to Canadians: making it an offence to remove a digital lock. The impression we get is that this government wants to put the entire population in prison; I do not know where we are going to put all the people being locked up. In the NDP, we say this government is disconnected from reality, disconnected from what Canadians see and what Canadians think in everyday life. Canadians do not understand why they want to put someone in prison for five years, when other crimes are much worse but are punished much less harshly. Putting sentences for digital manipulation on the same footing as assaults and crimes against the person makes no sense to the Canadians who watch us do our work as legislators every day.

I am going to offer a more personal anecdote. Before I became a member of Parliament, I worked for Statistics Canada. Statistics Canada's legislation on the subject of the census said that a person could go to prison for not answering the census. This was quite an old provision. Canadians did not understand why failing to fill out a form could mean someone would go to prison just like a person who committed a crime against a person, who committed an assault on someone, or who caused damage to property. People could not understand it.

The fact that we are told someone can be imprisoned for a term of up to five years shows that the government is completely disconnected from reality. No one in Canada would understand how someone could be put in prison for five years for digital manipulation, when other people do not go to prison for crimes against a person. For myself, this is what I find most shocking when I read this bill. It tells me there is a complete failure to understand, a complete disconnect between the government, on its pedestal, which is all powerful and demonstrates every day that it uses and abuses those powers, and the people who are trying to live their lives, and sometimes just trying to survive, and cannot understand this double standard.

Another aspect is also a cause for concern, in my opinion. We have the impression that this government is targeting students. There is a provision in this bill that would require them to destroy course notes they have used after 30 days, when those notes should be part of the knowledge they have acquired. They should be able to retain them for later use in their profession or in higher education. This makes no sense.

We want a country that develops and flourishes due to the quality of its teaching—providing better education for its children—and yet, paradoxically, a clause has been included in this bill that will force students to destroy their class notes. As a result, they will not be able to take advantage of everything they have learned, which is valuable to them, and to all of us here. Indeed, we need the next generations to be better educated and more comfortable, in a professional sense, with new technologies. This is yet another example of the government not sharing the same approach. It is as if they were living in another world.

Something else shocked me. I have listened to a number of debates and discussions on this issue and get the sense that the government is being deliberately ambiguous, and engaging in verbal games with words like “creator” and “copyright owner”. Some of my colleagues made a very relevant observation earlier, and that is that creators are not necessarily—and not at all in many cases—the rights holders. In the debate on this bill, every member across aisle constantly talks about standing up for the rights of authors, but copyright is not always the property of the authors, rather it belongs to big companies or publishing houses which, in practice, are not the authors.

So there is this constant, insidious ambiguity, deliberate in my opinion, regarding creators—whom we wish to encourage, of course—and copyright owners. The latter are often, too often, big companies with sometimes outrageous profit margins, whose situation does not resemble that of a creator, that is, the person who had the brainpower to generate the cultural product in the first place.

The NDP has consistently favoured a balanced approach to find the right balance between, on one hand, the rights of creators—not the copyright owners—to receive fair compensation for their work and their contribution to society in general, and, on the other hand, the right of the consumer to have access to culture at a reasonable price.

When considering the flaws in certain provisions in this bill, what automatically springs to mind is the issue of digital locks, which has in no way been resolved. In fact, as things currently stand in the bill, there could be situations where legal and legitimate copies are banned, despite the fact that it is perfectly legitimate to make the transfer from one format to another once the rights to a product have been purchased. Clearly the bill has not resolved this problem.

I will stop there and answer my colleagues’ questions.

[Marc-André Morin, NDP, Laurentides—Labelle, QC]

Mr. Speaker, my colleague's speech got me thinking.

If we are prohibiting copying and forcing people to destroy data, would it not make sense to think about destroying old bills that have already been introduced? This would mean less paper hanging around and would save power.

[Tarik Brahmi, NDP, Saint-Jean, QC]

Mr. Speaker, I thank my colleague. He is funny, as usual. We always appreciate his sense of humour.

This seems to be something that we are seeing from this government: the willingness to destroy course notes that have been collected, created and used in a completely legal way. He was perhaps also referring to the fact that the government wants to destroy the data from the long gun registry, but I am not sure if that was the case. I imagine that it was. However, in the case of Bill C-11, we do not want to force students to destroy their course notes.

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

Mr. Speaker, a number of members of the NDP started their speeches on a motion to limit debate as did he. That is one of the problems we have with this debate and so many debates in the House. There is no motion to limit debate on the floor right now. We are continuing debate. There will be an opportunity to bring motions forward at committee should we get this bill to committee.

In the hon. member's home province I know the video gaming industry has actually taken off in the hon. member's home province. It is doing quite well and is very important to thousands of jobs in his province. Could he explain to the House how, in the absence of effective technical protection measures, that industry could continue to flourish in the province of Quebec? What suggestions might he have for continuing the investments in the film, TV and music industry in Quebec? He seems to be suggesting that we do not protect our creators or our artists and that those people who have worked so hard in so many industries in our country should not have their investments protected by a law that is in line with our international partners. How does he suggest we make those protections? If he can table for me the motion of closure, I would appreciate that as well.

[Tarik Brahmi, NDP, Saint-Jean, QC]

Mr. Speaker, I thank the parliamentary secretary for his comments.

Obviously we are not against the idea of protecting people, but we are against the adverse and unintended effects of digital locks. When a digital tool has more adverse and unintended effects than the original purpose for which it was created, we could end up preventing someone who legally acquired music rights from changing the platform or format. What we are against are the adverse effects of certain tools, which are not controlled and are not seen today.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I wonder if the member can help me. According to the Conference Board of Canada, there is an estimated 1.1 million jobs, 6% of the Canadian labour force, in Canada's arts and culture industry, generating some $25 billion in taxes. It seems to me that people who have testified before, including the artists themselves, the creators, SOCAN, for example, representing artists and music publishers, et cetera, are all calling for some kind of a balance. Would the member not think that a government that believed in Canadian heritage and industries would actually try to achieve that in a bill, rather than going this other way?

[Tarik Brahmi, NDP, Saint-Jean, QC]

Mr. Speaker, I want to thank the hon. member for his question.

It is indeed a Conference Board of Canada report from 2008 that supports these numbers in terms of how much money this brings in for Canada and in terms of culture. In this bill, we do not see any clear willingness by the government to recognize our creators. That is what we are denouncing today.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Mr. Speaker, first, as far as democracy is concerned, things were certainly better in previous Parliaments. During the 41st Parliament, or at least until the holidays, there has been nothing but closure after closure and no debate. I do not know whether the cameras are rolling and whether people can watch us from home, but if they can, what they are seeing day after day is the Conservatives refusing to talk about legislation that is important for the public, people and small businesses. The Conservatives think that is just fine.