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

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

Indeed, we do not have the same perspective at all in this debate. By introducing words like “such as”, and even keeping Bill C-32 as it is currently worded, given that it includes a new exception for education, we will be depriving artists of revenues, to the benefit of the educational sector.

Demonstrating a lack of respect for artistic works and artists is a very bad message to be sending to young people who are in school or university. You are basically saying that artists are “information”, which clearly shows that we really are not speaking the same language. This is a very poor way of teaching our young people to respect artistic works and the value of such works. If we tell them not to worry, that it's free—an open bar—we are not teaching them any new principle with respect to the value of artists. It's important to talk about that. One of the debates we're having here has to do with the fact that artistic works are not free. Music and books are not free.

[The Chair, Conservative, Gord Brown]

Madame Lavallée, I'm going to have to cut you off there.

The NDP is not here for their round, so we'll move to Mr. Fast.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair, and my thanks to our witnesses.

I notice how quickly you focused on the two issues that are the subject of most of the discussion around this table: the education exemption and the digital locks.

Let me deal with the first one. You've heard Ms. Lavallée already. After your appearance here, there will be publishers who will tell us that we are gutting their livelihoods and removing all their income. They suggest that up to 85% of their revenues will be gone.

I disagree with Ms. Lavallée. I think the proposal of the government is sound. It is an approach for the 21st century. Your approach is similar to ours, but you feel that we haven't gone far enough in that the educational exemption we've included is still too restrictive.

Could you expand on that and comment on the claims that the education exemption is going to remove the income of the publishers and the writers they represent?

[Nathalie Des Rosiers]

I'll let Mr. Knopf respond to the second question first, and then we can zero in on this.

[Howard Knopf]

Thank you, Mr. Fast.

Before I answer Mr. Fast's question, I'd like to respond in a few seconds to what Madam Lavallée suggested that I've—

[Ed Fast, Conservative, Abbotsford, BC]

That's all right as long as it doesn't cut into my time, Mr. Chair.

[Howard Knopf]

I just want to say that I'm here as a counsel to the committee. I'm not here in my own capacity. I just want that on the record.

[Ed Fast, Conservative, Abbotsford, BC]

Understood.

[Howard Knopf]

It was the same last week, and if I come again, it will still be the same.

Mr. Fast, that was a very good question. First of all, it's not the intention of the CCLA to diminish the income of writers and people who deserve income. The question is, how many times extra do they need to be paid, and do they need to be paid at the cost of educational quality?

As to including the word “education”, it's not a question of whether it goes far enough or not. We've suggested that from the way the court cases are going right now, including the word “education” won't make any difference. I have no idea why anybody's upset about it. If the Federal Court of Appeal decision and the Copyright Board decision stand, the word “education” means nothing, because the Copyright Board has decided that multiple copies or anything prescribed by a teacher doesn't pass the fairness test, so the word “education” is simply window dressing, if it's there.

We suggest that we adopt some of the better practices of the U.S. legislation. In our view, the courts and the board have got it wrong. We should specify that “education” may, if it's fair, include multiple copies in the classroom, and if the professor says you really should read this, that may be part of fair dealing if it meets the six-part fairness test of the Supreme Court of Canada.

So we're suggesting a bit of a narrowing of the word “education”, which should take away some of the irrational fears while overcoming the extremely restrictive condition imposed by the Copyright Board and upheld last summer by the Federal Court of Appeal. The problem with that restrictive interpretation is not that it's going to cost a lot of unnecessary money that does not get paid in the United States or China or the countries we need to compete with, but that it puts a chill in the classroom. Teachers think they can't tell the student to read something, because it's going to cost the institution a fortune. Let us suppose that an important article comes out on the front page of The Globe and Mail; if Madame Des Rosiers in her law school class has to teach something about an important event that happened that day, and it's timely to hand out something from the newspaper, the Copyright Board will say that those are multiple copies and that you can't do it.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you.

I want to get to my second question, which has to do with digital locks. You've suggested that digital locks should not be able to trump the fair dealing rights. The problem I have....

I'm trying to get my mind around this. In order to make sure that the fair dealing rights aren't trumped, you're also going to have to remove the provisions that prohibit the manufacture and marketing of circumvention devices. You have to remove that because you have to provide consumers with a way of getting at the fair dealing content. If you do that, eventually consumers for the most part are going to have circumvention products available—software, hardware, whatever it is.

Doesn't that render digital locks meaningless, useless?

[Nathalie Des Rosiers]

Well--

[Ed Fast, Conservative, Abbotsford, BC]

It also opens the door to abuse. Hopefully most consumers are law-abiding citizens and will only access fair dealing content, but you and I both know--human nature being what it is--that people will abuse that, and now you're going to make it so much easier for them. In fact, the testimony we heard earlier at this committee essentially was that it goes to the very heart of anti-circumvention measures.

[Nathalie Des Rosiers]

In our provisions we suggest that “any person may circumvent any technological protection measure for private, non-commercial and non-infringing purposes...provided that such services and products are capable of substantial non-infringing use”, so it's not a completely open door, trying to measure....

The difficulty in maintaining what is provided for here is that in a way you're really putting citizens where they are unable to protect themselves. You're trumping technology—

[Ed Fast, Conservative, Abbotsford, BC]

Hold on; they're not able to protect themselves, but really it's a matter of contract. The owner of the content, the creator, says, “Listen, here's my contract, and I'm going to sell it to you—”

[Nathalie Des Rosiers]

But it's only in this format.

[Ed Fast, Conservative, Abbotsford, BC]

Yes, “and only in this format. That's my deal. If you don't want to buy it, that's it. Find someone else who provides a similar product or don't buy it at all”.

My concern is that if you go that extra step and allow circumvention for fair dealing, you've now made it so easy to allow the cheaters to undermine the system that digital locks become absolutely meaningless. The creators have no protection anymore.

[Nathalie Des Rosiers]

The example we had in mind, I think, is the one in which, for a perfectly legitimate reason, a family in Toronto with family in India says to them, “Oh, I'd really like to buy movies that I can't access here”, and the movies are sent with the digital locks. It will be impossible to play them on the super-duper new theatre they've just bought. In a way, I think, to prevent them from accessing that....

They're not breaching the law. They're not doing anything illegal. It's just that there is an unfair regional distribution here that prevents them from accessing a product. Our point is simply to allow a defence here.

[Ed Fast, Conservative, Abbotsford, BC]

Right, but don't you believe that the market will eventually--

[Nathalie Des Rosiers]

Solve this?

[Ed Fast, Conservative, Abbotsford, BC]

--take into account those kinds of concerns?

It's not a perfect system, but I believe that the market and the creators will find ways of acting reasonably to allow those kinds of media transfers to take place. My understanding is that some of the digital lock technologies now will allow two or three copies to be made, so--

[The Chair, Conservative, Gord Brown]

Thank you, Mr. Fast.

Go ahead, Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Chair, I would like to apologize humbly to my committee members that I am late this morning. I don't want to blame the Ottawa taxi service, so I'm not going to put the blame on anyone else other than myself for having tried to get here on time.

I know that I missed my round. I would respectfully and politely and humbly request the indulgence of a five-minute round, if my colleagues are willing to grant me that.

[The Chair, Conservative, Gord Brown]

Is there unanimous consent?

[Some hon. members]

Agreed.

[The Chair, Conservative, Gord Brown]

Mr. Angus, go ahead.