Bill C-11 Committee on March 5th, 2012

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

I want to go to Mr. Stone now. If we define the author of an audiovisual work to include the director and the writer, what impact do you think that will have? Everyone around this table knows that what we're trying to do with this legislation is to balance the interests of not only creators and consumers but all stakeholder groups. Will we continue to have balance?

[Stephen Stohn]

It could fundamentally change. I'll give you one right in particular: the retransmission right. In Canada, there are tens of millions of dollars at stake, and it's the copyright owners of the underlying work who are entitled to this remuneration.

If the directors were named the authors and, therefore, the first owners of copyright, what would happen? Does that suddenly mean that the producers who have raised all this money to produce these shows would ab initio not be entitled to that money? Would it mean that an industry-wide negotiation would have to take place and that effectively, in order to hire a director, they would need to assign all of those economic rights?

This comes back to the comment earlier about a difference between economic rights and moral rights. Certainly in the United States economic rights very clearly flow primarily to the producer and can be shared under negotiated industry-wide agreement. That may be one regime; the moral rights may be a separate one.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Stohn and Mr. Braid.

We're now moving to Mr. Dionne Labelle pour cinq minutes.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

In the testimony given by the various groups that have appeared before the committee since the beginning, we have often heard about the need to have a balanced bill. That is the term that kept coming up in all the presentations.

I think the people from SODRAC, the members from this group representing Canadian writers, don't feel that this bill is balanced. If major providers and producers are happy to fight against piracy, which is a good thing, I get the feeling that Mr. Hollingshead could see his work pirated because of the exceptions that are currently in the legislation.

On the one hand, we are fighting against industrial piracy; on the other hand, we are legalizing a type of piracy against artists' works. Is that correct?

[Greg Hollingshead]

Are you describing what the educators want to do as piracy? Well, yes, because what they would like to do is have professionally produced Canadian materials available without paying anything for them.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

That type of piracy is basically not any different from industrial piracy. We are talking about modernizing the Copyright Act. But I see that the authors, the creators, are losing out in this modernization.

Do you get the feeling that this modernization is being done at the expense of creators, of writers?

[Greg Hollingshead]

I think that if the bill passes unamended, yes, absolutely, it will be at the cost of creators. I don't think it would take very much to....

As you all know, this is a tremendously complex matter, and the whole business of balancing interests is extremely difficult. I'm not the first to say that the government has to be congratulated for taking it this far. We're just asking for that clarity. I think Mr. Barr asked for it earlier as well.

That's what we're asking for to defend the creator: just clarity. It's like a technical amendment, which we have suggested, brought forward, and submitted. That's all.

[Marian Hebb]

We have about eight amendments that affect particularly the writing and publishing community and that we would really like you to look at very carefully. We've given them to the clerk.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

The summary of the bill talks about “updating the rights and protections of copyright owners... so as to be in line with international standards”; it does not say anything about taking away their rights.

Would your texts be better protected outside or inside Canada, given the current international standards?

[Marian Hebb]

The fair dealing provision as it's now presented in Bill C-11 is going to open the door so broadly that we are extremely worried about the position of writers.

We're also very worried about the user-generated content provision that has been talked about, because that, as worded, would actually allow course packs such as my colleague has here. The wording is very, very broad.

A number of amendments really do worry us. We don't think they're intended to do what we think they in fact will do, and what they will do is completely unpredictable, so we are very keen on getting something in about the harm to the market.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

Would you like to add to that? Take it away.

[Greg Hollingshead]

Yes, I entirely agree.

What we're asking the committee to do is to attempt to make good Minister Moore's commitment to having clear laws and protection of investment. That's what we're asking for. Otherwise, you're robbing from those who can't afford to pay.

[Pierre Dionne Labelle, NDP, Rivière-du-Nord, QC]

I would say that...

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Hollingshead and Monsieur Dionne Labelle.

Your five minutes are up.

Now we will go to Mr. Lake for five minutes.

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

Thank you, Mr. Chair.

I was going to go in a different direction, but to start I think I'll follow up on that.

We've heard a lot of testimony from people who say they're concerned about the bill being overly broad. They use language similar to what you've used. I prefer to go to the text of the bill and take a look at what the bill actually says.

For example, user-generated content has been a concern that's been brought up here. Ms. Hebb, you just brought it up. The bill says basically that user-generated content is not an infringement of copyright and then goes on and lists some clarifications. One of those is if

the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

When you hear that language, what part of that seems broad or unclear to you?

[Marian Hebb]

One of the things about the substantial adverse effect is that you won't be able to tell until after it's happened. It doesn't allow you to complain in advance, so by the time—

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

Yes, but it's pretty hard to claim that anything or anybody has ever broken the law in advance.

[Marian Hebb]

One of the things is that these are very small infringements, in a way, and they're done by a lot of people. If one of these works, these mashups, starts circulating around the Internet, one of the things that could happen is that the cumulative effect of all these small infringements, or one infringement that goes viral on the Internet, in fact has a disastrous effect on a particular thing.

What if somebody writes a sequel to my novel? Maybe I think that's fine as fan fiction, but maybe it's not. Maybe they've picked up the clues I had in my earlier novel and have written the sequel I was going to write. Then it's copied on the Internet and people think I've copied my fan.

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

I'll go back to the thing you said about a whole bunch of small infractions. I know this may not be applicable to literature, but if I wanted hear a song, it's probably unrealistic that I would watch seven different YouTube clips to capture the whole song. I would lose the context of the song. Similarly, it would be unlikely that I would go online and find eight or nine different sources to capture the completeness of Mr. Hollingshead's short story. It would seem kind of unrealistic to—

[Marian Hebb]

But you could use the whole sound. I think Stephen Stohn said there were wraparounds.

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

Again, to clarify, the law is very clear that you can't do that. It says you can't do anything that would have “a substantial adverse effect...on the exploitation or potential exploitation of the existing work or other subject-matter...or on an existing or potential market for it”.

It's very clear that you can't do that.

[Marian Hebb]

You can—

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

I think it's important to get that clarification. Coming back to what the bill actually says, it's quite clear that you can't do that.

[Marian Hebb]

Well, you shouldn't, but you don't know what will happen if you do.

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

I'm going to go to Mr. Stohn on this, because I did want to get his feedback.

When you look at the wording there.... You used the example of someone running 10 episodes of Degrassi back to back as one solid YouTube clip.