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

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Mr. Speaker, I rise on a point of order. This is now the fourth or fifth member of the NDP who has talked about closure on the bill. I wonder if you might clarify for the members of the NDP whether closure has been invoked on this bill?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, to provide some clarity, one could look at the definition of closure. Quite frankly, if the member is referring to the fact that the motion that has been moved prevents a person from being able to bring in another amendment, that is, in one sense, a form of closure. It is the way in which one might want to define closure.

The Conservatives might not be comfortable with it, but that is the reality of it.

[The Acting Speaker, Conservative, Barry Devolin]

While I appreciate the intervention and the assistance from the hon. member for Winnipeg North, what has happened is the previous question has been moved. The meaning of that is there are no further amendments allowed to the bill before the House.

Time allocation or closure in the usual sense has not been moved. We are not debating time allocation or closure.

However, the member for Winnipeg North is correct in a broader definition. Limiting debate may be a better phrase to use rather than closure. We are debating the previous question, which means there will be no further amendments.

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

Mr. Speaker, I am sorry, but if 61% of the population is not allowed to speak and propose amendments, and if the government refuses to debate, I have to wonder where democracy is in this 41st Parliament. We are supposed to have the right to propose amendments. This means debating and sharing ideas with the governing party—the Government of Canada, I should point out.

We have heard that the Copyright Act is very important for the market and that it is indispensable to cultural policy. Through clear, predictable and fair rules, it can promote creativity and innovation. There will be no innovation here if we are not able to propose any amendments, that is for sure.

Bill C-11, An Act to amend the Copyright Act, introduced by the Minister of Industry and member for Mégantic—L'Érable, will create years of confusion in the court system and in appeals courts, and will also delay the existing processes for recognizing certain contested copyrights.

It seems that, in this era of new technologies, creators' and inventors' copyrights are being violated more and more every day. These people, who often spend their entire lives creating, developing, composing and fine-tuning their work, will end up seeing their vital right violated. It is often vital for them, since this is sometimes referred to as giving birth. This is a lifelong process. All of this will simply be ignored because the government refuses to listen to 61% of the population when it comes to this bill.

The question here is: what is copyright? Copyright ensures that creators have the right to receive royalties, but fundamentally, it recognizes the property of the tangible or intangible heritage of a country or region, or even of the entire planet.

Since section 6 of Bill C-42 passed in 1985, copyright continues to apply for up to 50 years after the death of the creator. Many sovereign states have since decided to extend that time limit in order to better reflect reality and to recognize the contribution that these creators made to the heritage of their country. Copyright extends as long as 70 years in some countries, when the work is not declared part of the national heritage, in which case, the copyright is simply eternal. When we think of Beethoven or Mozart, clearly, some creations are eternal.

I would like to talk more about music. I have been working in the industry for 30 years. I have known some creators. I have known many young people, and many not so young, who have spent their lives practically starving because they never got the recognition and the royalties they really should have received.

These days, new communication and technical support technologies allow pirating to happen in many ways. This is especially true of music, but also of books and photographs. I do not think that the bill address this issue well enough. If the Conservatives would listen to these artists and creators a little more, they would understand what is at stake for these Canadians, the people of my country, Canada.

The penalties for copyright infringement are so inappropriate and so ridiculously biased that they completely miss the mark in terms of this legislation's objective, which is to protect real people who spend their entire lives creating, entrepreneurs who create jobs and generate revenue.

The copyright bill also does not define what is meant by “fair”. This is a question of fact that must be decided based on the circumstances of the case. Lord Denning explained this in Hubbard v. Vosper in 1972 in an appeal court decision:

It is impossible to define what is ‘fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts [whether they are music or print]. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. [It is always subjective]. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.

Justice Linden of the Supreme Court of Canada, in CCH Canadian Ltd. v. Law Society of Upper Canada, set out factors to assess fair dealing as follows:

(i) The Purpose of the Dealing

In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting: see ss. 29, 29.1 and 29.2 of the Copyright Act [which will be affected by the reform]. As discussed, these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights. This said, courts should attempt to make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work...Moreover, as the Court of Appeal explained, some dealings, even if for an allowable purpose, may be more or less fair than others; research done for commercial purposes may not be as fair as research done for charitable purposes.

We all agree on that. Let us continue with the ruling.

(ii) The Character of the Dealing

In assessing the character of a dealing, courts must examine how the works were dealt with...

(iii) The Amount of the Dealing

Both the amount of the dealing and importance of the work allegedly infringed should be considered...

(iv) Alternatives to the Dealing

...

(v) The Nature of the Work...

And I will finish with the following:

(vi) Effect of the Dealing on the Work

Finally, the effect of the dealing on the work is another factor [one of the most important and vital] warranting consideration when courts are determining whether a dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair.

In this regard, I would like to point out that different types of “marketplaces” have been established in our society where counterfeit goods are commonplace and difficult to control. Even if the effect of the dealing on the market is an important factor, it is not the only nor the most important consideration when the time comes to complete the analysis of fair dealing.

The amendment proposed in clause 29 would extend copyright to education, parody and satyr. I hope that we will not bear witness to parody or satyr here today.

[The Acting Speaker, Conservative, Barry Devolin]

Before I go to questions and comments, I understand there are some difficulties with the lights that go along with the microphones. I have been told that the microphones are functioning, even though the lights may not be on. I can tell you that the light on my microphone is not on right now either.

If you are recognized by the chair, proceed as though your microphone is on and we will stop you if it is not.

Questions and comments, the hon. member for Timmins—James Bay.

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

Mr. Speaker, I listened with great interest to my hon. colleague, and I was very interested that he laid out the six steps that were identified in the Supreme Court decision in the Upper Canada College court case that defined the principle of fair dealing.

One of the most contentious issues we have seen on the copyright bill involves, on the one hand, the desire of students and educators to be able to access works and, on the other, the concerns from the artistic community that fair dealing could open up a Pandora's box that would undermine the rights of artists.

The Supreme Court decision set out the six steps that clearly identified how fair dealing would be utilized so that it would not be open season. The decision made it clear that we could not just take a textbook and photocopy it as much as we wanted and that there had to be criteria to ensure that the rights of the students were balanced off against the legitimate rights of creators.

I am concerned that the necessary level of balance is not seen in the bill. The bill does not go anywhere in defining fair dealing in terms of the rights under education that were defined by the Supreme Court.

It has been the position of the New Democratic Party that if we are to continue to maintain the sense of fair dealing and are going to put it in legislation, then we have to have it within the context defined by the Supreme Court so that people know the rules.

Would my hon. colleague tell us why he thinks the Conservative Party has failed to have this fundamental basic test of fairness put into this legislation?

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

Mr. Speaker, I would like to thank my colleague for that question.

I think it is a question of values. The Conservatives' values are not the same as the public's values. Creators have concerns that are different from the concerns of the big corporations, the concerns of all the people who control the publishing and reproduction industry.

I think creators' essential rights must be protected. They can make a real contribution to education and to sharing their works, because, to my mind, that is part of their property rights that must be recognized. It is all a question of values and judgment.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, my colleague mentioned that artists find it difficult to survive. It may surprise the members of the House to hear, but the average income of an artist in Canada is $12,900 per year. Obviously, it is difficult to survive on that. The bill wants to take millions of dollars in revenue away from artists.

I think we risk losing a lot of artists because they will be unable to survive. I would like to ask my colleague how he thinks this may affect Canadian content in the arts.

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

Mr. Speaker, we will see in the free trade talks whether that is part of a secret deal or agenda with the Pacific or Europe.

Canadian content is already not given enough protection in all our institutions, in radio and television broadcasting, and in the publishing and marketing of our products. If there is one right that is essential to Canadian artists and creators, it is that their products must be marketed properly so that they can be shared by as many people as possible, and so that creators can receive the royalties they are due. Perhaps then their average income would not be below the poverty line in Canada. I was in the music industry for 30 years and I have seen creators. There are hundreds of thousands of creators who deserve to be in the spotlight and to express themselves in front of an audience.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, clearly the laws governing intellectual property and copyright in Canada need to be modernized. Technology has changed over the past 50 years. Change is necessary, but the question is what kind of change. Change is all the more important in a world where trade is becoming increasingly globalized. Change is also important if Canada wants to protect itself and its creators from unfair competition with countries that have already modernized their laws. The reason why the government is so motivated and eager to pass this bill is that it is currently in negotiations with Europe for a free trade agreement, and Europe has tougher laws that better protect its creators.

The principle of having a bill on intellectual property and copyright is, therefore, good. The NDP believes it is high time that copyright rules were modernized. The way this government is going about it, however, causes too many major problems. In some cases, the government is even creating problems where none existed before. We are attempting to amend the bill so that it is more in line with the best interests of Canadians, however the government does not even wish to consider any amendments.

What is important is protecting the creators and not the distributors of the works. That is what counts.

Let us spend a little time considering the principle of copyright. Copyright is a set of exclusive prerogatives that an author has over his or her original works. It is a legal, historical and social construct that has greatly changed since the invention of the printing press, and it is periodically called into question. It can basically be divided into two branches: moral rights, which recognize the author's authorship of the work and which also aim to ensure that the integrity of the work is respected, and proprietary rights, which confer a monopoly on economic use of the work for a specified period after which the work enters the public domain. As a branch of the law, copyright is one of the key elements of intellectual property and literary and artistic property.

Coming back to my point: the purpose of this right is to protect the creators and not the distributors of works. That is the mistake this government is making, and that is the problem with this bill.

Who is the creator of the work of art? Whether we are talking about a new computer game or a new novel, that is the question we need to be asking when we draft a bill like this one. We have to protect the production and the creation of the creators, the artists, the musicians and others. If we take the time to ask an artist—I wonder if the government did that—what one of their greatest challenges is, it is often having to deal with the major corporations to which they are obliged to sell their creations.

I oppose this bill because it protects the large corporations and does not set out to protect the authors or creators themselves. The vast majority of artists are local. They are poor and need help getting better compensation. The reality is that, once a work is created, sometimes the contract that is signed with the distributors does not allow the artists to earn a living.

A good example of this is the music of Bob Marley. Bob Marley had a terrible struggle with music companies, even to get enough food to feed his family. He had to invent writers for his songs to avoid his songs being published by companies which exploited his name and reputation for their own gain. Even today these companies continue to publish his catalogue without any recognition or compensation to the rightful owners of the corpus of his work, his very own family.

We also need time to consider all the amendments that might be made to the bill in order to create a system of fair royalties for artists. As it stands at present, the bill eliminates several million dollars worth of income for artists. What is more, this bill grants a number of new privileges in terms of access to content, but does not provide any alternative method of remuneration for the artists. That will have a significant impact on our artists' ability to survive.

However, the government pretends that it is protecting creators, but it has yet to show how artists and other workers in creative industries would have a better living because of this bill. Bragging about the strong measures, including digital locks, does not miraculously make this a good piece of legislation.

Artists know that this is a bad bill. That is why over 80 arts and culture organizations across Quebec and nationwide argue that the bill would be toxic to Canada's digital economy. They warn that failure to amend the copyright modernization act to ensure fair compensation for Canadian content owners, not distributors, could only lead to a decline in the production of Canadian content and its dissemination domestically and abroad.

If that is not enough, let us consider the opinion of the Writers Guild of Canada on digital locks. According to the guild, the only option the bill offers to creators when it comes to digital locks is the freezing of current revenue streams for creators. It creates an illogical loophole in the copyright bill by taking away the very rights the bill grants to consumers in its other sections.

If that is not enough, let us consider the opinion of the Society of Composers, Authors and Music Publishers of Canada, SOCAN. SOCAN believes that copyright law amendments should facilitate access to creative content on new media and ensure that creators are fairly compensated for the use of their creative content on new media.

Access must go hand in hand with compensation. Without this balance, the creation of creative content would eventually decrease as Canadian creators would be unable to make a living and compete with other countries worldwide.

The government has said it is giving rights holders the tools they need in order to develop products, market them and get paid for them, that this bill is about protecting creators from piracy, but artists themselves disagree. The government's sloppy legislation forgets that copyright covers a very wide range of artistic media using cutting-edge technology to create art.

Digital locks may work for software, but they are a restrictive and unpopular option when it comes to entertainment and artistic content, and are likely to be selected against in the open market as they were with music. Digital locks are neither forward looking nor in consumers' or creators' best interests.

I would also note that this is the first time I have spoken to this piece of legislation. There are artists in my riding. If I had not had a chance to speak to this bill, it would have been very unfortunate for them, for my chair is not my chair, but the chair of the people who elected me.

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

Mr. Speaker, how lucky we are that this gentleman had an opportunity to talk about this bill in the House. A number of members of the NDP and the Liberal Party have also had an opportunity to speak to it. It has been before the House for many years. There have been hundreds of hours of debate on it. We have heard from a lot of witnesses. I was very pleased to hear in the member's speech that the NDP is starting to come on side, because earlier they were saying that there would be no more amendments, that the debate was finished. The hon. member has clearly stated that, in his words, they will attempt to amend the bill, so they will be bringing amendments forward. We anxiously anticipate that.

In 2009 in Quebec, I think there were some 107 films worth hundreds of millions of dollars in economic activity. He referenced the video gaming industry as well. I keep asking every single member of the NDP the same question without getting an answer. How would the members of the NDP protect the hundreds of thousands of jobs in the Quebec video gaming industry and in the movie and television industries in that province if they refuse to absolutely protect the creators of these works? This represents hundreds of thousands of jobs. That is what this bill would do. That is what the creators are asking us to do. If we want to continue investments in these valuable industries, we need to protect them.

I am wondering if the member will work with us to get this bill to committee and let us see the amendments that the hon. gentleman has talked about.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, there were a number of points in that question and I will try to address them separately.

First, it does not matter to me how many members spoke to this bill before. What matters to me is whether I was able to speak to this bill for the people of my riding. That is what is essential.

With respect to the second point, I was speaking in the past. We would have liked to amend this bill.

Third, it is hard to follow the member's rambling question, but I think he talked about protecting workers. It is an ironic question because on this side of the House we have no problems speaking up for workers, as opposed to members on that side of the House who spend their time trying to destroy collective bargaining rights.

[Robert Aubin, NDP, Trois-Rivières, QC]

Mr. Speaker, I have a simple question for my colleague, which follows from what we heard about protecting jobs.

If I am following the debate, it seems to me that Bill C-11 is kind of like an inverted pyramid, in which the rights of everyone would be recognized, but everyone else's rights are placed above creators' rights, which are at the bottom of the inverted pyramid. If we want to maintain and even emancipate all the jobs in the industry, the bill must primarily protect creators' rights. Without creation, there is nothing.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I completely agree with my hon. colleague and I thank him for his question. First, creators in Canada are saying that they are against this bill. There are measures in this bill that supposedly and ideologically target creators and artists, but all they do is strengthen rights for big corporations in this country.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Mr. Speaker, does the hon. member have any specific recommendations as to how we would protect the over 107 films that were created in Quebec in 2009 at close to $200 million of economic activity? Does he have any specific suggestions how we would protect the 14,000 jobs in the video gaming industry as a result of the NDP's position to absolutely forget about protection for creators? How would the NDP actually do that? We have not heard that yet.