Bill C-11 Committee on Feb. 29th, 2012

[Stuart Johnston]

Quite frankly, we'd rather see no limit on statutory damages. But in the spirit of the act, we have not talked about a specific ceiling as an association. We were hoping to engage in more discussions on that with folks on your side of the table to talk about what is an appropriate level, if it is deemed that there should in fact be a level.

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

I guess my concern is.... You know, I come from the music business, but I've seen how it was done in the United States, where we had multi-million-dollar lawsuits against individuals. You're telling us you're not against a kid in the basement, but Jammie Thomas-Rasset was hit with a $1.5 million fine for downloading 24 songs. Joel Tenenbaum was fined just under $1 million for a bunch of songs when he was 17.

That puts a really bad taste in the mouth of Canadians. We want to make sure that people are not doing piracy, but how do we know, if we raise this to unlimited damages, that you're not going to be going after kids? Because that's what the companies have done in the past, and Canadians are concerned about that.

[Stuart Johnston]

Part of the language is so broad in the act that we really don't know what the definition of “individual” is versus “commercial” or “non-commercial”. That's part of the reason we approached this in the way we did: because we find that the definitions in the act are not specific enough to actually define who that kid in the basement is. Then we can sort of bypass that and go after the enablers.

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

Well, wouldn't you think it would be better to come to us and say let's define the act so that we're not going after the kids, as opposed to saying let's have unlimited damages? We want to make sure that the enablers are not getting a free ride here, but if you're saying “unlimited damages”, I'm hearing that could include kids. So if you're not sure who it is you're going after, I would suggest that if you could find some clarifying language, that would really help.

I am concerned about outlawing parody and satire. I've been a member of SOCAN for 30 years, and I've seen the industry change dramatically. Most of the bands—and I still hang out with bands now, although I'm getting a lot older and the bands are getting a lot younger, I have to admit that—talk about factor: they talk about touring support, and they talk about mechanical royalties, which is an excellent point that you raise, and the loss of the mechanical royalties. But I've never heard any band say they want to get rid of parody and satire, because bands do parody and satire. I've done parody and satire. Are you saying that should be against the law?

[Stuart Johnston]

Well, what we're saying is that if we have a clause in there that does permit the use of parody and satire, first, there is no definition of that. Where are the boundaries? What do we really mean by parody and satire? And I think my—

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

But can you do that with art? Are you telling us, as musicians or artists out there, that we're going to legislate what is parody and satire as art? I think that's pretty absurd.

[Stuart Johnston]

That's actually our point, so we—

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

But I've never heard a band say that. I've never heard a musician tell me that they want to outlaw parody and satire. God, poor Weird Al Yankovic would never have had a career if that were the case.

[Stuart Johnston]

We're not suggesting that it should be outlawed. My friend was talking about the moral rights.

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

Well, you're saying—

[Stuart Johnston]

If this legislation enshrines stronger moral rights, and then at the same time says that you're allowed to do parody and satire, that flies in the face of moral rights.

I'll tell you exactly how—

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

But are you saying that the moral right of one artist overrides the moral right of another artist to do satire? I mean, all music culture is based on satire. It's based on parody.

My concern is that.... We have mechanicals, and that's concrete stuff, that's bread-and-butter stuff. But to say to us that one artist doesn't like the fact that someone did his song and actually did probably a funnier version and people are listening to it and that we should somehow have a law against that.... How would you even sell that to your own members?

[Stuart Johnston]

Well, I would take a step back and look at the principle of the matter. Who owns that material? It's the right of the copyright owner to say “Yes, you may use my song” or “No, you cannot”.

I'll give you an example of how it works perfectly. On Sunday night at the Oscars, Billy Crystal opened up the Oscars with a montage of songs to celebrate the nine films that were up for best picture. It was great, funny. They changed the lyrics, they used the music, and it was wonderful. But he wanted to use several different songs for that montage, and the copyright holders of those songs at that point said “No, I don't want you to use it for that purpose”. Billy Crystal said that was fine, and he moved on to the next song, no harm, no foul, and the montage was brilliant.

But the point is, that system respects the copyright holder, and that's how it should work. But with Bill C-11, if you add the exception for parody and satire, that respect for that moral right or the making available right is gone.

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

And then we see that we're also looking at getting rid of the user-generated content. I guess I'm busted, because I've produced some user-generated content--and for my colleagues in the Conservative Party, I've done some against them. So I guess your guys might have a.... If we bring in this provision, my good friend Mr. Del Mastro will have a hand to come after me.

There is a difference with user-generated content between stuff that is interfering with the market, but kids are putting up stuff all the time—

[The Chair, NDP, Glenn Thibeault]

Mr. Angus, you're well over time.

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

—and are we saying that we're going to outlaw YouTube?

Thank you.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Angus.

We're now moving on to the next five minutes and to Mr. McColeman.

[Phil McColeman, Conservative, Brant, ON]

Thank you, Chair.

Thank you to all for being here.

First, to the CARCC organization and Ms. Seline, your comments would indicate that you take a strong position that there should be no exemptions for education. Now, prior witnesses to this committee—professors at universities, representatives of teachers and boards of education—from their testimony would indicate that they actually pay millions and millions of dollars to the creators for some of the materials they use. The materials they use without payment are photocopies of maybe one or two paragraphs, or one or two pages, out of a...but they're very sensitive. They also point out that those in academia are very sensitive on this issue and want to make sure they pay their fair share.

The bill sets out to indicate that fair dealing would be the model to determine this. I'm wondering why your organization has taken a black and white stance on this.

[Janice Seline]

Well, it's not as black and white as it looks. I think the act as it exists now has a huge section dealing with education and what education can and cannot do. It's well understood. Bill C-11 tries to add to that and clarify some things. Some of them I don't agree with, but some I do.

The fair-dealing exception simply muddies the waters. It creates a whole lot of questions. There are institutions such as museums that under the present act are not classified as educational. There's a good definition of what an educational institution is in the act. Museums do not fall into that. On the other hand, they engage in public education.

We've heard them say, in the Bill C-32 hearings, that they can't wait to declare themselves as educators under fair use—which will open up a whole lot of litigation, as far as we're concerned. If we have to fight with them every time they claim fair use, it will cost us a fortune. It will take years. It's better to leave it out of fair use and in the act the way it is now and continue to deal with it the way you do.

There are, of course, millions of dollars paid to the reprographic rights organizations for the privilege of copying. Our organization benefits from that. Our members do. However, in Bill C-11, the part we have a little problem with is that you're declaring that the Internet is not an option for licensing. We think there would be creative ways to do that, and to simply say “Internet” is way too broad. That's all.

[Phil McColeman, Conservative, Brant, ON]

Thank you.

To the consumers group, how do you expect consumers would use the proposed exemption for non-commercial user-generated content? How do you think consumers would use that?

[John Lawford]

The example that's often used is a YouTube video of your child with music playing in the background, or a slide show that you create with music in the background. If that is non-commercial and you're not making any money from it...and it's being done right now. It's within the ability of everybody who has a computer. It's being done. Consumers are used to it, and they are being creative and non-destructive.

As soon as it turns into a commercially successful remix, if you will, that gets sprung out of the act and you have to compensate.

Those are two fairly simple examples I can give you.

[Phil McColeman, Conservative, Brant, ON]

Thanks.

To the Independent Music Association, in the view of moving forward with a new copyright bill...and I think there's no argument; everyone who's come before the committee has said this is absolutely necessary. I think you said it. It's absolutely necessary. In fact, most groups would indicate that we need it sooner rather than later because the current legislation is so outdated.

But the integration of reliance on in fact everyone at the table today, and how it works today, is so obvious to any of the viewers of this issue. As you consider how the government would strike that balance, it seems to me that everyone's asking for the maximum protection—

[The Chair, NDP, Glenn Thibeault]

You're over time, Mr. McColeman, so could you wrap up and have—

[Phil McColeman, Conservative, Brant, ON]

Could you just react to my comments?

[The Chair, NDP, Glenn Thibeault]

—the individual do this as quickly as possible?