Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 8th, 2011

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, Mr. Chair.

Thank you all for being here. I hope you're having a nice day.

We're not inviting you guys to the same Christmas party, that's for sure.

You spoke a little about this being an attack on collective licensing. Can you elaborate on this?

And you spoke about an amount of $126 million that is at risk. Could you give us a bit of detail on what is in that $126 million?

[Stephen Waddell]

Thank you, Mr. Rodriguez.

Fair dealing for the purposes of education, in section 29, is $41.4 million; performance of cinematographic works by educational institutions would cost the rights holders $25 million; the non-extension of the private copying regime to digital devices takes $30 million out of the pockets of performers and rights holders; and the ephemeral recordings, section 30.9—the commercial radio tariff—takes $21.2 million out; and the broadcast mechanical, television, and other radio services is $8.6 million, for a total of $126.2 million.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

All right. Thank you for that clarification.

You expressed some concerns about the field of education, and we share them.

In your opinion, what impact would adding the word “education” have on our writers, publishing houses and creators? How would they be impacted by the inclusion of fair dealing for the purposes of education?

[Stephen Waddell]

Define education. Anything can be education. Sitting here certainly is an education.

The problem with the expansion of fair dealing to include education is that it's unfortunately just too broad. We would certainly want to see some fences built around, or more prescriptive wording than the simple, broad—

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Let's say we define education.

What is education for you? How should it be—

[Stephen Waddell]

I don't know. You can define it in so many ways. We would want to see specific—

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

But in your case, what should be...? Would it be limited to universities and colleges, for example? Do you have an idea what should be—

[Stephen Waddell]

The problem is, as we say, that it's not defined. Watching a film can be educational.

It should be limited to specific research and so on, rather than just allowing unfettered use because of “educational use”.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Okay. So your recommendation would be to take the word “education” out.

[Stephen Waddell]

That's right.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

If we don't go there, how about doing two things? The first one is to define education, limit it as much as possible, and then put a top test in that would limit the impact of this section.

[Stephen Waddell]

That sounds like a reasonable approach, Mr. Rodriguez.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Okay. Thank you.

I think it was you, Mr. Lewis, who said, regarding ISPs, that safe harbours should be fixed. I think you were the one who said it; is that possible?

How can we fix that?

[John Lewis]

The bill as drafted provides too broad a safe harbour for what look like seemingly innocent hosting sites, which may have been designed for purposes other than for infringement. The specific language now restricts any type of liability, if they are specifically designed for that purpose. Well, they can be designed for that, but try to prove it.

Secondly, they can be manipulated for a whole host of other, more nefarious uses. That's one of the areas we see in which this bill has to be changed, for hosting sites—and they're proliferating.

With technology changes.... Every time I get a briefing, it's hard to stay on top of the technology changes, and we have to stay ever vigilant. That's one of the areas in which we see that action has to happen. If we don't go after the hosting sites, this will not have been a worthwhile exercise.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move to Mr. Cardin for five minutes.

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you, Mr. Chair.

Welcome, ladies and gentlemen.

Before I start, I want to get to one thing. Last week, I did not have time to put all of my questions and comments.

Witnesses alluded to potential losses of $21 million on ephemeral recordings. I want to respond to Conservative Party members who insisted on knowing where that figure came from. I can now tell them that it was pulled from a written statement by the Copyright Board of Canada. That would qualify as a credible agency. That is where the figure came from, Mr. Del Mastro. It appears, however, that the government never calculated the exact impact this could have on creators.

The committee also heard last week from officials from the Canadian Chamber of Commerce. Mr. Webster stated that copyright was a way of rewarding creators. It never even occurred to him that copyright was a form of remuneration for their work, their talent and their creativity. He maintained that it was a reward.

Potential losses of royalties through various ways were recently evaluated at $74 million. Some would even put this figure today at $126 million. If Mr. Webster from the Canadian Chamber of Commerce sees royalties as a reward, then what does he think of a bill that strips creators of $126 million in royalties? What does he think of this government initiative?

What have creators done to the government to deserve, not rewards, but reprimands and loss of income?

[Ferne Downey]

We don't know what creators have done to have such a loss of remuneration that currently flows. We always try to paint the picture very carefully that artists in Canada are very modestly remunerated, but your work has value and copies of your work have value. That's the only thing we have: what we create and what we make.

So the existing loss of income is already a particular thorn, let alone contemplating the beautiful world we could inhabit with the expansion of the digital platforms of distribution. I mean, it really should be a much.... There should be recompense for that work and for the distribution of that work.

[Serge Cardin, Bloc, Sherbrooke, QC]

SInce this is the Copyright Act, normally, one should have expected safeguards for creators, not a loss of income. The gains already made should have been guaranteed. The legislation could potentially have favoured development and enough creativity to satisfy other stakeholders involved, such as broadcasters.

Do members of the International Alliance of Theatrical Stage Employees receive payments directly?

[John Lewis]

The question I heard is that our members don't receive payments directly, and I'm assuming you're talking about on the levy side. No, the remuneration for most below the line...a crew, which are the members we represent, is paid on a hourly basis for hours worked. We don't have additional payment schemes that flow from the sale or exhibition of a product.

That's why, quite frankly, this isn't our issue. We haven't really commented under those facts, and as we see here again today, the focus of a lot of the debate has been on this one element, which I understand from my friends is a very serious and very important element. It's not to me.

The overall well-being of the industry is. It's my members' jobs that are being impacted. I heard $130 million as a number. That's a serious number. It's also the cost of one motion picture that's being shot in Montreal right now. It's that type of impact on the industry. It's the industry that's suffering and it's jobs that are suffering.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move to Mr. Lake for five minutes.

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

Further to that, actually, Mr. Lewis, could you elaborate? We tend to get bogged down in what people don't like about the bill, because that's typically what people want to talk about when they come here. As we have our deliberations as a committee and are hearing different ideas of what to change or what not to change, I'm interested in what aspects of the bill are most important to protect, from your standpoint.

And why is this bill so important? Or maybe how important is it for us to pass this bill, to make sure we actually pass it in this minority government context here, where we don't know if we're going to get through it? Certainly we won't at the pace we're at right now.

How important is this bill for your members?

[John Lewis]

It's crucial. It's interesting to note the change of attitudes. Every three years I get to attend a world conference with trade unions working in the film industry around the world. Four years ago, it wasn't on the radar anywhere. The IA was addressing it as a serious issue.

I just came back in November from a similar conference and it's all anyone's talking about in Europe, in Asia, and in Africa. This is impacting not just Canada but everywhere, and we are falling behind. You guys know this. We need to act and to move forward. It's impacting jobs.

We haven't tried to quote what the number lost is because then it becomes a mug's game of trying to nail down a number of what the loss is to the industry. But they are significant losses. It's not just for foreign service and the big studios, but it's also for the domestic industry, where financing is so precarious and producers are looking for every scrap they can to get a show made. If you take away any element in the revenue stream...it's integral to financing, and you're seeing shows drop off because of that.

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

Thanks.

Mr. Waddell, it's interesting, because I'm a fan of music, movies, and television, and you actually, in your comments, kind of make me feel guilty. I like to think of myself as a customer or a client of the folks you represent, yet you come here and you hammer me over the head because I might want to actually take a song that I purchased and listen to it on my iPod. I just don't get that.

My wife has an iPhone, so she buys a song directly. She hears it on the radio, says she wants that song and she wants to buy it, and she spends her $1.29 to buy the song directly from her iPhone. You're saying, hey, that's not good enough, and you want a piece of the iPhone that she's going to listen to it on. I don't understand that.

By the way, the $75 comes from a Copyright Board proposal, just to clarify the record here. It's not a number that was made up. It was actually a Copyright Board proposal.

But how do you justify that? I don't get it.

[Stephen Waddell]

Thank you, Mr. Lake, for the question.

And no, I'm not coming here to hit you over the head. I'm just trying to foster some understanding of what our interests are. Our interests are in ensuring that creators get paid for their intellectual property rights, just as Microsoft gets paid for its intellectual property rights when it sells licences for software. If you use MS software on multiple devices, you have to pay multiple licences. That's the principle, and that's all we're asking for with respect to creators.

We're talking about a modest amount of money, Mr. Lake. Yes, it's $75. I'm a negotiator, I always start high and hope to find a place in the middle, a compromise that makes sense for all parties.

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

Okay.

Now I want to move on from that subject. Again, I see kind of a theme here. We talk about the notice and notice thing, and again you used the word “infringer” several times in regard to notice and notice. I think the whole point of notice and notice is that we don't know if the person is an infringer or not. You're assuming the person is an infringer or you might make an argument that the person is an infringer. But the whole concept of notice and notice is that there's a notice given that someone believes that something is an infringement and then that sets the table—of course there's sort of an order of things that happen there where the ISP has to retain identifying information, for example, as a result of the notice.

You wouldn't cut off someone's gas simply because someone says that maybe they broke a rule or something. You kind of have to prove that they're not paying their bills before you cut off their gas, right?