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.