Mr. Chair, members of the committee, my name is Jean Brazeau. I am the senior vice-president of regulatory affairs and government relations at Shaw Communications. With me today, to my left, is Cynthia Rathwell, vice-president of regulatory affairs. To my far left is Jay Kerr-Wilson of Fasken Martineau.
Thank you very much for giving us the opportunity to present our views on Bill C-11.
Shaw Communications is a diversified company that offers a broad range of communications services, including cable and satellite television, high-speed Internet access, home phone, and broadcasting.
Through its various undertakings, Shaw creates, acquires, distributes, and transmits copyright-protected content to Canadians. As such, Shaw understands the importance of effective copyright legislation to Canadians and understands that any copyright rules must be carefully balanced to protect consumers' interests and to support both creativity and innovation.
In our view, copyright should support and encourage the development of legitimate markets and products and services. It should give rights holders adequate protection against infringement and the freedom to negotiate fair compensation for the use of their works. Copyright laws should not, however, erect barriers to innovation. They should support and not hinder the development of new services and new business models. They should foster partnerships among creators, distributors, and consumers.
We are pleased to see that the government has taken a balanced, consumer-friendly approach to copyright reform in Bill C-11. In particular, we fully support the minister's statement that this legislation is intended to legalize everyday consumer activities, including time shifting television programs, using cloud computing and remote storage services such as network personal video recorders, creating and sharing user-generated content, and moving content purchased to the devices and into the format of their choice.
We support the government's desire to achieve balance in the legislation, and we believe that Bill C-11 has largely succeeded in achieving that balance.
We would like to bring to the committee's attention three specific provisions of the legislation that we believe fall short of achieving the government's policy, provisions that could be remedied with a few minor and, for the most part, technical amendments.
To ensure that Canada's new notice and notice regime, which we strongly endorse, functions well and becomes an effective partnership between rights holders and ISPs and to ensure that ISPs are not made responsible for any infringements by their customers, a few small technical amendments to Bill C-11 are needed. The details are set out in our written brief.
In general, however, Shaw strongly believes that ISPs' obligation to deliver notices and retain data must come into effect at the same time as regulations that standardize the required notice format and set maximum fees for the provision of notices. The new automated notice system that ISPs must design to comply with the new regime can only be effective if rights holders' notices contain consistent information and formatting. As such, it is appropriate that new notice requirements come into effect pursuant to the regulations that ensure that notice systems can be built and operated efficiently.
Second, the legislation provides for a specific exemption that permits consumers to record, or time shift, television programs for viewing at a later time. The minister has stated that this exemption and the hosting exception are intended to work together to permit network personal video recorder services—PVRs—to operate without incurring copyright liability.
Shaw fully supports the government's objective to permit network PVR services. We are concerned, however, that the hosting provision as currently drafted is not as clear as it could be in expressing the government's intention to enable cable and satellite companies to offer consumers NPVR service.
To put it simply, a network PVR has to perform two separate functions to operate: it has to make a copy of the television program that the consumer wants to record and it has to transmit that program to the consumer when the consumer wants to see it. The bill, as drafted, provides a clear exception to copyright for the recording of the television program by the network PVR service, but is silent as to the transmission of that same program.
We submit, with respect, that the bill would benefit from additional clarity in exempting the network PVR provider from liability when the program is transmitted to the consumer for viewing.
The current lack of clarity could lead to vexatious litigation and stand as a barrier in the provision of network PVR services to Canadian consumers. We believe that a minor technical amendment to the existing provision will make it clear that a network PVR provider does not incur copyright liability for either hosting or transmitting television programs that have been recorded at the request of the consumer. We have provided the clerk with the specific technical amendment recommended to accomplish that very end.
Our final concern is with the provisions that apply to the sale of content online, and specifically the language of the “making available” right.
As drafted, the legislation could treat every transmission over the Internet as a broadcast to the public. This means that if someone bought a copy of a song from a service such as iTunes, that transaction would be treated the same as if the song had been played on the radio. We think it's far more appropriate to treat an online sale of a song, movie, or game the same as if that song, movie, or game was purchased in a store.
As a result of the approach taken in the legislation, online transactions involving music in Canada will not be freely negotiated between parties, but will require the intervention of the Copyright Board of Canada to set the prices to be paid for music. This will produce what we believe to be unintended results. Under the approach taken by Bill C-11, negotiating with the composer for a fair price to sell the game on the Internet is not even an option. The same problem will apply to the online sale of movies, television programs, and other forms of multimedia entertainment.
Given the government's desire to encourage Canadians to be innovative leaders in the digital economy, we do not believe that copyright legislation should prevent parties from freely negotiating licensing agreements and instead impose input pricing set by the administrative tribunal. In our respectful view, it would be far more reasonable and consumer-friendly to apply the same rules to the sale of products in the online world as apply to the sale of products in the retail world.
Mr. Chairman, members of the committee, we believe that Bill C-11 is an important measure to modernize Canada's copyright laws. We support the pro-consumer exceptions and the enhanced protection against piracy. Subject to our suggested amendments to better reflect government policy, Shaw thinks that Canada and Canadians will be well served by this bill.
We would be pleased to answer any of your questions.
Thank you.