Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 10th, 2011

[Howard Knopf]

In fact, the United States has a much more generous notion of fair dealing, yet they still provide a good-faith exception, so I don't know why Canada would shoot itself in the foot by rendering its professors and its students more vulnerable, with fewer restrictions, than in the United States. After all, don't we want our students and professors to be at least as smart as their American counterparts? Why would we hobble them and cripple them and make them cower in fear every time they download something?

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

I don't think anybody can argue that. What they will argue, though, is that there has to be a question of regime that gives a fair compensation for those who create so that the incentive remains for them to continue to create. Fair dealing is a two-way street.

[Howard Knopf]

In fact, there's a considerably greater compensation paid in Canada than there is in the United States. Universities do not have.... There's no equivalent to Access Copyright in the United States and there's no equivalent down there to the tariffs that Access Copyright is seeking. There's no equivalent down there to the course-pack payment and no equivalent to the annual fees.

We're already paying considerable compensation, but that's not stopping the demand for more. What we're paying now is far greater than exists in the United States and probably in most other countries.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

My colleague may have a question or two.

Thanks, Chair.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, witnesses, for being here.

Madame Des Rosiers, you mentioned that in the context of parody and satire, under fair dealing, you wanted to include the additional two words “such as”.

[Nathalie Des Rosiers]

Yes.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I'm not a lawyer, but my intuition is that this broadens things out quite a bit, and I was wondering if you could be a little bit more specific as to why you wanted that there.

[Nathalie Des Rosiers]

Indeed, I think “such as” does not broaden per se, because once you say “such as”, the judge must interpret that in light of the list that's being.... It prevents too narrow an interpretation and it allows for future possibilities to be argued on the basis that they are similar to satire, parody, and so on.

The point we're making here is that there are some pressures to restrict what has been done in the interpretation of “research”, the interpretation that was put forward by the Supreme Court, and we want to prevent further restrictions of what has happened. This is a tool that we are suggesting should be looked at to ensure that the liberal way in which “research” has been proposed to be interpreted continues.

Certainly, I think CCLA wants to protect--

[The Chair, Conservative, Gord Brown]

I'm going to have to cut you off there.

We're going to move to Madame Lavallée for seven minutes, and possibly you can answer.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Good morning, Ms. DesRosiers et Mr. Knopf. We have met before. You are really lucky to have a chance to appear twice. There are a few others who would like to come back. I will be discussing that with the Chair.

It was really quite difficult to prepare for your appearance here this morning—first of all, because we were only made aware of it at 5:00 p.m. yesterday, and also because we don't have a brief and you did not prepare a written presentation. I'm sure you can understand that it's very difficult for us.

To try and bring out the salient points of your analysis, all I had in front of me was a document prepared by our analysts—who are excellent, by the way. This is what it says: “At the time of the last attempt to reform copyright in 2009, the CCLA urged the government to fully incorporate flexible fair dealing provisions, abolish or revisit Crown copyright [...]” I understand now that the term “utilisation équitable” corresponds to the U.S. “fair use” terminology.

[Nathalie Des Rosiers]

Yes, that's in our brief.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

But we have not seen it.

[Nathalie Des Rosiers]

You will be receiving it soon. I'm sorry; things happened a little too fast.

In our brief, we suggest that a specific provision of the Act recognize the right of Canadians to access the information they have paid for. This is essentially Crown copyright. It's not a major change, since there is already an order--

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

When you talk about information, are you referring to government information?

[Nathalie Des Rosiers]

Yes, I mean legislation, legal decisions, research documents, and so on.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

All right; I understand.

[Nathalie Des Rosiers]

As we see it, this is a great opportunity to reinstate what is already there. It's not a major change. Indeed, a Justice Department order already recognizes Canadians' right to such access. What concerns us is the fact that this is a good opportunity to achieve the same thing in legislative terms.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

That's fine; I understand.

With respect to fair use, which you were discussing earlier with my Liberal colleagues, that is what you're looking for. The words “such as” translate as “tel que” in French. However, the situation in the United States and Canada is totally different. The United States has a population of a little more than 300 million, whereas Canada has 23 million Anglophones and 7 million Francophones. Furthermore, it's a well known fact that lawsuits are as natural as breathing in the United States, whereas here, we just don't follow the same practices.

In my vocabulary—and I'm pretty good in that area—that would be the equivalent of the French word “comme”. In other words, it is not restrictive. Those are only examples. The point is, it could be a whole range of other things, just as it could also be that. That is what the words “such as” mean. Of course, everyone will want to take advantage of the words “such as”. Do you believe that private corporations are not going to try and take advantage of this? Why, when they can afford a lawsuit here and there—and a great many of them can—would they not?

In order to please a lot of people, by allowing them to access a wide variety of documents free of charge, you seem intent on having the words “such as” added, but perhaps you haven't taken the time to reflect on what copyright started out as. Creative works belong to their creator. No one can take them away from them. Works can be temporarily ceded or transferred to someone else in exchange for money or in other ways. Creators may decide to sell their works, but those works will always belong to them. When people buy a CD, they are not buying a musical work; they are purchasing the pleasure of listening to it. People do not buy Luc Plamondon; they buy the pleasure of listening to his music on a CD. If they copy that work, or they use it in a school or somewhere else, the least they should do is pay the author for that work. I was going to say that it remains his for life. Let's just say that is almost the case.

You seem to want to respond to that.

[Nathalie Des Rosiers]

I think it's important to be aware of two things here. Protecting the artistic property of authors and support for artists have been part of the Association's mandate for years now.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

That doesn't come through, though.

[Nathalie Des Rosiers]

It depends on how you approach things and the balance you're aiming for. We want to ensure not only that artists who are already active in their artistic field can receive appropriate royalties, but also that people aspiring to be artists or who are at the bottom of the ladder will also have a chance to move in that direction and access information. We definitely want to support artists all the ways that are now available--

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Do you recommend in your brief that there be better compensation for artists?

[Nathalie Des Rosiers]

Certainly. There is no--

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

By introducing “fair use”, you are taking income away from artists. Under the current system in Canada, some $40 million a year is paid out to them. However, introducing “fair use” into Bill C-32 will take away at least $40 million a year. Is that how you want artists to be paid?

[Nathalie Des Rosiers]

I would just like to finish explaining our argument, if you don't mind. We do not think it is appropriate to restrict access to information and relevant research, particularly for the most disadvantaged members of our society, because that truly is a bridge to better things. That is the problem. If we think that doing something to support the right to education and access to information minimizes something else, and that there is no other solution, then I think we will be losing out and that we won't be approaching the debate from the proper perspective.