Bill C-11 Committee on March 5th, 2012

[Jean Brazeau]

We are probably handling several thousand of these requests per month, so the volume is fairly significant. We want to make sure that there is a consistency in the industry on how we deal with them. We think it would probably need a period of about 12 months for the industry to establish the right guidelines, the right framework, in order for all of us to deal with these notice and notice requests in a structured way.

[Geoff Regan, Liberal, Halifax West, NS]

When we deal with this question of notice and notice, we have two fundamental problems.

On the one hand, an ISP has a difficulty being an arbiter and deciding when there's infringement and when there's not. That's the problem with notice and takedown, obviously: they're asking the ISP to be the arbiter.

The other problem, of course, is that for a creator, particularly a small artist, to enforce with a lawsuit every single infringement of their copyright is obviously impractical and impossible. The problem, then, is how to reduce the amount of copyright fraud—infringement—and at the same time ensure that artists get compensated? One witness suggested that we need to have some kind of made-in-Canada solution that overcomes that, particularly for smaller players.

Do you have anything in mind that might work?

[Jean Brazeau]

We think that notice and notice would work effectively.

[Geoff Regan, Liberal, Halifax West, NS]

Tell me how that would work for the small creator who can't afford to pursue every individual case of infringement, let alone one case, sometimes.

[Jean Brazeau]

Jay, do you have anything to add?

[Jay Kerr-Wilson]

I would say that even small creators need the opportunity to reach their market. Certainly the Internet, as Google testified, gives unprecedented ability for the small creators to reach and find their audiences and to sell. We need to have the tools in place that promote legitimate markets and restrict infringing behaviour. I think this committee and the Bill C-32 committee heard lots of testimony that notice and notice does provide a significant deterrent to infringing behaviour and will give the tools for the legitimate market.

Therefore, you drive people away from the infringing behaviour and towards legitimate services and legitimate service providers. The small creator has unprecedented ability to now access that marketplace, to find their audience, to find their consumers, and to engage in very small transactions that will be profitable.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Noss, I have the impression that you're on the edge of your seat in wanting to answer this question.

[Elliot Noss]

Well, I'll briefly say that small creators who appreciate that sharing is the way to become big creators are the ones who have the best chance of getting there. Small creators who try to restrict sharing of their content tend not to get there.

[Geoff Regan, Liberal, Halifax West, NS]

Then what are the models you see that are going to result in creators being compensated?

[Elliot Noss]

I think what we're seeing now is really twofold. We see that innovative creators get themselves out there massively through sharing and we see that now the most innovative models and the ones that are capitalizing most effectively are the ones doing it through concerts and merchandising, etc. There still is a fantastic opportunity to get paid straight around music consumption if it only wasn't so complicated.

[Geoff Regan, Liberal, Halifax West, NS]

You suggested that ISPs work harder than anybody—

[Elliot Noss]

I said service providers—

[Geoff Regan, Liberal, Halifax West, NS]

I'm sorry; it's service providers.

[Elliot Noss]

—because that's a broader category.

[Geoff Regan, Liberal, Halifax West, NS]

Sure it is. Pardon me. I'll drop the “I” for a moment.

They work harder at stopping the bad guys, as you put it.

[Elliot Noss]

That's right.

[Geoff Regan, Liberal, Halifax West, NS]

Does notice and notice remove some of that responsibility? Also, what do the service providers do to stop the bad guys?

[Elliot Noss]

There are two things there. One is that notice and notice refines the responsibility appropriately.

No service provider wants bad guys on their network. The interesting thing is that so often there are innocent transgressions that notice and notice solves without the classic “record label taking grandma to court” story. Most people, when they hear about problems, simply go away.

It's the real offenders, the massive bad guys, who you are not going to get with notice and notice, or notice and takedown. There is where you need the big stick. When I'm talking about service providers helping, I think they really are the ones who, at the front lines, are doing a lot of that enforcement, because it's way easier to be smart about it up front and to have a straight game.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Noss and Mr. Regan.

I know that your five minutes go by quickly, as they do for everyone else, but we will now start the second round of five minutes of questioning.

We'll be starting with Mr. Armstrong.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you, Mr. Chair.

I want to thank all the witnesses today.

I'm going to start with Mr. Noss.

I was very interested in your comments that the legislation we have before us is going to give Canada the opportunity to really expand the business we're going to be doing in this country and to create a bigger pie for everyone to engage in, particularly smaller operators. Could you expand on how this legislation is going to enable us to do that?

[Elliot Noss]

Most importantly, you have a growing, thriving industry of small service providers. They're not asking for incentives. They're not asking for financial support. They're simply asking to be allowed to grow and to take advantage of what they can do without having inbound disruption or discouragement, so simply removing those threats, which some previous forms of the legislation could have provided, is huge.

What they need is that chance, and what I think this does for Canada is that Canada becomes an attractive destination around creativity and the open Internet. That does not mean, in any way, safe harbour for pirates, and cue the scary music; instead, it will get creative innovators who simply want to be in an environment where they can do what they do best without having to worry about the noise that might attend some overreaching legislation.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you.

I'm going to move on to Shaw and Mr. Brazeau.

You talked about time and format shifting. You said that the top end of the legislation deals with it very well—I'm talking about the recording and moving the recording around—but you said that the back end of that, which is the rebroadcast or the transmission of that data after it's been reformatted or time shifted, needs a little work. You said that the way it is worded now might lead to some sort of “vexatious” legal actions. Can you expand on that and discuss what you're talking about there?

[Jean Brazeau]

Yes, and in a minute, I'll let Jay, who is the lawyer here, chirp in.

Our big concern is that while there is certainly an explicit provision on the recording, there's silence on the transmission. We think you can't have one without the other, and the problem is that we've certainly been involved with other issues for which there was not an explicit exemption, and it could be challenged. That's what we're concerned with.

Jay, I don't know if you want to add to that.

[Jay Kerr-Wilson]

The concern is on the hosting exception. In hosting, you make the storage and you store the copy into the host. The existing language talks about the act of providing digital memory not being an infringement of copyright; the concern is that if someone were to think of the copying and then the transmission out as two separate acts, it could lead to someone’s asking a court to say the copy was covered but the transmission is not; that act alone is a second act.

All Shaw has proposed is to tweak it so that explicitly making the copy and transmitting the copy back to the person would all be covered under the same exception. It's not an expansion; it's just clarifying the intent.

[Scott Armstrong, Conservative, Cumberland—Colchester—Musquodoboit Valley, NS]

Thank you for that.

Mr. Brazeau, in some of your comments about the sale of content online you discussed how, as we move into the future, more and more people are doing all kinds of shopping online, and not just for digital media. You said that we should treat this more as we do retail, when we actually go into a shop. The same rules and regulations should apply.

Could you give us some specific examples of how we could do that with this legislation?