Bill C-11 Committee on Feb. 27th, 2012

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Thank you.

I can't remember specifically, but I think it was you who mentioned something about tying content to specific platforms. We've seen how disastrous that was way back when, when a certain company that created Beta machines tried to buy up content, literally, to convert it to Beta so that they had control over it.

Could you elaborate on that, as far as the dangers in this current climate of that type of work?

[Prof. Jeremy de Beer]

What we see in the literature is a lot of researchers pointing to evidence of anti-competitive or potentially anti-competitive conduct, and one of those is tied selling. It's the “razor and razor blade” model, where you have electronic or digital content that's tied to a particular platform or a particular kind of device.

If you use electronic books as an example, it's entirely possible, indeed it's common practice, for Apple to tie books designed for the iPad to their particular device. Amazon Kindle can do the same thing, and in theory and practice you could have the same thing with the Android platform—although that's a little bit of a different category, for reasons I can explain if you'd like.

If a company like Research in Motion is trying to encourage customers to switch their content from the Apple iPad to the RIM PlayBook, there's a significant challenge in doing that. It may be possible, but if it's possible, it's only because RIM has the permission of the content providers and the device manufacturers to do that—to create the interoperable system. It's not going to be possible if there's no general market cooperation. This is one example of the potential problems that can emerge if liability for circumvention is not tied to acts of copyright infringement.

Again, just to emphasize, if that change were made, if the Swiss model were adopted, illegal behaviour would still be illegal. It would only be permitted to circumvent technological protection measures for lawful purposes. Anything that's an act of copyright infringement would continue to be an act of copyright infringement, and rights holders would have additional remedies for that problem.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. de Beer and Mr. Benskin.

Now to Mr. Moore, for five minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you to our witnesses.

Mr. Gannon, you spoke with a lot of enthusiasm about some of the new business models, the opportunities that could flow to Canada with a strong copyright regime in place. I noted with interest your taking issue with the term “digital lock” and preferring other terminology.

You mentioned Blockbuster. A lot of us have seen the traditional storefront closing, but you mentioned some new opportunities they're having with downloads. What do you see on the horizon that this framework would enable for Canadian businesses? Are there any other opportunities similar to the example you cited?

[James Gannon]

Without favouring one business over the other, what we have seen a lot of is a reluctance of content providers to provide their content to Canadian distribution. They know that if you're a movie studio, if you're a video game designer, as soon as that one unprotected copy gets released onto the Internet, it might as well be in everyone's hands.

I think content providers, quite reasonably, are really trying to protect the streams and the channels through which their content flows. That's why, when it comes to licensing that content in Canada, there's a reluctance because they know that the device they're flowing their content through might have the greatest protection in the world, but it's completely legal for it to be broken. Even if we make some of those proposed amendments to allow that circumvention for some private copying, you're still allowing that content to be unprotected, you're still allowing for that protection to be broken, and you're creating that unprotected content.

As you said, that's why it's impeding certain economic activity, because these content providers are not licensing their content for Canada, and that's why we're not seeing the same kind of range of services and digital distribution as we see in other countries, in Europe or in the United States. That kind of economic activity would be promoted by enacting the kinds of protections we have now.

[Rob Moore, Conservative, Fundy Royal, NB]

I have one follow-up question. On another matter, you were discussing the safe harbour. You identified what might commonly be seen as bad actors and then some that lots of us would see as just fine—and the importance to have a distinction. You mentioned, a bit nuanced, the primarily designed versus primarily operated distinction.

Is there a middle ground? You might not want to cite specific examples, but since you gave us examples of a bad operator and someone who wouldn't be described as such, is there a middle ground we have to be aware of? As Professor de Beer says, under the current model or under some new model, there's going to be litigation. Where is the battle line going to be drawn?

[James Gannon]

Absolutely, there is a right medium, which is why I urge the committee to really try to come up with that right language. An example of why this enabling clause is kind of weak is that last year, at the Bill C-32 committee, even the ISPs—these guys who would be sheltered under the safe harbour—came out and said, “You know that enabling clause? You might want to kind of beef it up a little.” They are not the kind of people you'd think would be promoting that kind of amendment, but even they identified that as a necessary change.

When it comes to the safe harbours, there are some amendments you could make that wouldn't cover any of those traditional good guys, like the ISPs or the search engines, but would help in making the bad guys not sheltered under the provisions—specific things, such as if you know about an infringement, do something. If you are a hosting website and I point out that there's some infringement content, do something about it—I don't think any legitimate website would be opposed to that kind of requirement, that you take some action against infringing content once you know about it. That kind of requirement, which we have seen in similar legislation elsewhere in the world, is not found in the current safe harbours.

[The Chair, NDP, Glenn Thibeault]

You have 30 seconds.

[Rob Moore, Conservative, Fundy Royal, NB]

Professor de Beer, you mentioned the threat of litigation as being not a compelling reason to not proceed with new legislation. As someone who's been involved in the past with litigation, do you want to comment on why we shouldn't fear that?

[Prof. Jeremy de Beer]

I think the committee should try to come up with a predictable framework, not something that has a lot of inherent uncertainties. I don't think you should be overly worried or bullied into believing you can't do a particular thing with the legislation because it will have too much uncertainty or lead to too much litigation. In particular, I'm talking about the addition of the word “education” there. The courts will interpret that, no matter what this committee does.

[The Chair, NDP, Glenn Thibeault]

Great. Thank you very much, Mr. de Beer and Mr. Moore.

We're now on to Mr. Cash for five minutes.

[Andrew Cash, NDP, Davenport, ON]

Thank you, Mr. Chair.

Thank you to our guests today.

It was an excellent presentation, and I think anyone watching this outside of this room will also have been educated for sure on these matters.

I want to just follow up on something Professor Trosow said about codifying a test for fair dealing, such as the Supreme Court Canada has set out.

Do you know, first of all, of other jurisdictions where fair dealing has been codified? If so, how has that played out?

[Prof. Samuel Trosow]

The best example that comes to mind is that of the United States. We have case law in the United States going back to the 19th century allowing fair use, as it's called there, as a defence, but it wasn't until the 1976 revision to the Copyright Act that they actually codified it. The feeling was that this was the common law that's developed. It makes sense to have the legislation harmonized with the actual common law as much as possible, just to create certainty in the minds of end-users and institutions who have to try to order their affairs to comply with fair use.

The four fair use factors you see in the United States are based on how, in 1976, Congress saw the state of the law. I think that would be very similar to doing what the court in CCH said. The court in CCH did not pull these six factors out of the sky. There was a very long analysis in the court of appeals decision in 2002, which looked at a lot of English case law and developed these six factors. Basically, the Supreme Court said it endorsed those six factors.

[Andrew Cash, NDP, Davenport, ON]

Can you just elaborate further and give us a sense of what we'd be missing if, for example, we didn't take that advice and codify that?

[Prof. Samuel Trosow]

It would still be the law. The courts in Canada and the Copyright Board have made it clear that they feel bound by the decision of the Supreme Court of Canada, and nobody seems to be suggesting that decision was wrong with respect to those six factors.

I think you have an opportunity to say you think that's right too. You don't have to do it—you would keep the current state of affairs—but if what you want is more certainty, then I think you would be missing an opportunity to provide that certainty by not importing that very clear and relatively uncontroversial language into the text of the act.

[Andrew Cash, NDP, Davenport, ON]

Those on the other side would suggest that adding a measure around anti-circumvention of technical protection and technical laws instills that level of certainty. You're suggesting that this is a much more certain measure.

[Prof. Samuel Trosow]

I think it's a much more certain measure. If you're worried about the litigation that will ensue, I think there's just as much of a worry about litigation that is going to ensue from the technological protection measures. We've seen all sorts of litigation in the United States around things like garage door openers and printer cartridges.

It's really been a hotbed of litigation since the DMCA. Look, you can't craft legislation that is going to be litigation-proof. The fact of the matter is that we live in a litigious society—fortunately not as litigious as the United States. I hope we can keep it that way.

[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.

[Prof. Jeremy de Beer]

Yes. The basic issue is this: the federal government has jurisdiction over copyrights; the provinces have jurisdiction over things like contracts and property rights and devices.

As long as this legislation tracks the traditional contours of copyrights, there is not likely going to be a major problem. The problem is if this legislation does not link anti-circumvention liability to acts of copyright infringement, it goes beyond the traditional contours of copyrights. There is a risk that it will be invalidated constitutionally, and we would very likely see a challenge.

Just to elaborate on my earlier comment, I would suggest that the committee might want to decrease the likelihood of problems following a challenge. On the educational issues, you can decrease the likelihood of major problems by codifying these fairness factors.

On the anti-circumvention provisions, you can significantly decrease the likelihood of constitutional problems simply by linking liability for circumvention to copyright and copyright infringement.

[Glenn Thibeault, NDP, Sudbury, ON]

You have 20 seconds.

[Andrew Cash, NDP, Davenport, ON]

Do you have anything more to add to that, Professor?

[Voices]

Oh, oh!

[The Chair, NDP, Glenn Thibeault]

That would be in 10 seconds now.

[Prof. Jeremy de Beer]

I would just reiterate that I have provided the committee with a volume of scholarly articles and research on this going back several years.

[Andrew Cash, NDP, Davenport, ON]

Thank you.