Bill C-11 Committee on March 5th, 2012

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Yes. I read about three short stories from it, because that's what was assigned, but I paid for the rest of them. There isn't really a question coming out of that. It's just a comment on the problems that would face some of the student groups who have come before us.

I want to get to, if we could, your comments on fair dealing. You said that it fails to give students and teachers clarity on what is allowed. I think you referred to the six factors the Supreme Court said should be used to gauge fairness of the dealing. You said, I believe—and correct me if I'm wrong—that you thought the effect of the dealing on the work should be the number one factor. You said you would rank factors, or intimated it—

[Greg Hollingshead]

The market would be number one, I think.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

That is the effect of the dealing on the market. Would you rank the other ones as well? Do you think the purpose of the dealing is not something that's important or that the character of the dealing is not something that's important? That would be, for example, whether a single copy or multiple copies were made. Do you not consider the amount of the dealing to be important at all, or do you consider it to be significantly less important?

[Greg Hollingshead]

I'd rather not get into ranking in importance the factors in CCH. I was really using it to make the point that so far, what the courts are going to do with this is very uncertain. Clearly the appeals court and the Copyright Board had a certain view of what copying would be about, and they saw the aggregate view. They saw what a lot of copying would do to the market.

The educators have appealed more than once. Currently they're in appeal to the Supreme Court on this matter. My point was that it's not for the courts to decide; it's for Parliament. It's just too significant. The potential for uncertainty in the market and loss of income to the publishers and to the writers is simply too great. This bill is going to pass before anything is heard from the Supreme Court—

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

But the six factors exist already.

[Greg Hollingshead]

They do.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

We know that when we pass this bill, the six factors will apply to fair dealing.

[Greg Hollingshead]

They do. My point is simply that they don't make market impact primary, but it is the primary consideration.

If you're talking about a few pages here and there—

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

My understanding is that some of your associates don't feel the same way you do, that some would say it needs to be flexible. In fact, I believe Access Copyright, if I'm not mistaken, said there was a need for flexibility in what the court would consider among those six factors.

I just don't understand. When I'm looking at the facts, when I'm looking at what the Supreme Court says here, I don't share your sentiment that there is a lack of clarity. I think these six factors are very clear.

[Greg Hollingshead]

My sense is—Marian Hebb, you go ahead.

[Marian Hebb]

We don't really want the six factors to be written into the act.

The court is going to apply the six factors no matter what. That's what the Supreme Court looks at and how it analyzes it; it has done that for a long time, and recently, in the CCH case, it codified it. We are concerned about its treatment of those six factors because it doesn't take the market factor very seriously.

We want you to write into the act some sort of language that makes the market primary, or at least a major factor. We would be happy if you would do only that. The court will continue to use the six factors—

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

It's interesting—

[The Chair, NDP, Glenn Thibeault]

Thank you—

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

—that you use that argument here but not in—

[The Chair, NDP, Glenn Thibeault]

Mr. Lake, we are—

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

—the UGC provision where it is written.

[Marian Hebb]

I'm sorry; I can't hear you.

[The Chair, NDP, Glenn Thibeault]

We are out of time, unfortunately. We are well over the five minutes. I appreciate Mr. Lake's tenacity in trying to get that last question in.

I want to thank the witnesses for coming today. We appreciate your testimony and your input.

I also want to remind the committee that we are the hardest-working committee on the Hill, so in fourteen and a half hours we will be back at it again. We meet tomorrow morning in room 253-D in Centre Block.

Until tomorrow, this meeting is adjourned.