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

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

Ms. Simpson, would you like to add something?

[Danièle Simpson]

No, that's fine.

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

Let's talk about the Berne Convention and the three tests that should enable us to determine whether something can be considered fair dealing. Do you think that some educational uses could be consistent with the provisions of the Berne Convention and apply in the present context? Or do you feel that nothing would be consistent with the Berne Convention in terms of educational uses?

[Hélène Messier]

Not at all. In European countries, the Berne Convention is strictly enforced and there are exceptions for educational purposes, particularly for the purposes of illustration in the educational context—in France, for example. Often, to ensure that these exceptions do not have an inordinate impact on creators, they may also include compensation, but they are carefully targeted to ensure there is no impact on the market.

In some countries, such as Australia, legal licensing allows the schools to access works on the Internet in exchange for compensation. Copibec has an agreement with the Australian society for exchanges of inventory: we administer the Australian inventory in Quebec and Copibec receives royalties for the reproduction of material on Quebec websites.

So, yes, there are exceptions. They have to be strictly defined and, in some cases, include compensation. It depends on the schools' requirements. I think that there should be exceptions under the Act when access to works is problematic. However, when there is no access problem, I see no reason to include an exception. The Copyright Act does not give users the right to exceptions. When there are exceptions, they reflect the rights of users, but not the contrary.

[The Chair, Conservative, Gord Brown]

Thank you, but we're going to have to move along.

Mr. Cardin, you have five minutes.

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you, Mr. Chairman.

Good afternoon to all our witnesses.

I would like to come back to the notice-and-notice system and the responsibility that should rest with Internet service providers. In this digital world, digital service providers must be involved. How can we force them to take their responsibilities? Is there a better system than the notice-and-notice system in the international community? What do you advocate in terms of making Internet service providers more accountable?

[Alexander Crawley]

I would just say, as one of the gentlemen over here pointed out earlier, that there's no perfect system. It's a moving target. However, I think that the safe harbour concept in this bill is basically letting the guys and gals who own the pipelines off the hook. It says they don't have any responsibility for what's flowing through their pipes, but they get to make most of the money from the flow. We'd like a much more significant partnership with the delivery system, since we are partners, although not equal partners.

I don't think there's a perfect system. Certainly there is a graduated response. Perhaps Mr. Lake's understanding of notice and takedown is different from ours, but there has to be a consequence. Right now, you can have a few people sending out a notice again and again, but individual creators can't afford to take every perceived infringer to court. That's not a practical solution.

[Hélène Messier]

I agree with Mr. Crawley that there is no perfect system. In my opinion, the fairest approach may be the flexible response system whereby people receive an initial notice letting them know that what they're doing may be an infringement of copyright. It also makes it possible to apply increasingly tough sanctions.

At the same time, I think we should also be looking at other options. Perhaps Internet service providers should also be participating in the funding of culture and creative work. There is a cable production fund. At present, people who host and supply bandwidth services are people who are making money. They are pocketing the highest profits in the entire industry, and I think they should be making a contribution. Without it becoming a license to justify illegal downloading, that money could be passed on to creators and copyright owners to help expand the legal supply of material on the Internet. I believe there are a number of potential solutions that could be explored.

[Serge Cardin, Bloc, Sherbrooke, QC]

Are these your own suggestions and recommendations or have you taken inspiration from best practices that are currently in use?

Other collective societies around the world must have looked at this. In that respect, can you tell us what the best practices are at this time and whether we should follow their example?

[Hélène Messier]

A number of different systems have been implemented. Flexible or graduated response is popular these days. Both in France and England, they have introduced a form of graduated response. The idea of setting up this kind of fund also comes from people in the music industry and the CAMI agency.

We could also develop something original. Accountability does not preclude contribution. At this point, however, I cannot provide you with a miracle solution. I don't have one, but I do think we have to move in the direction of greater accountability for Internet suppliers, including asking them to make a greater contribution.

[Serge Cardin, Bloc, Sherbrooke, QC]

So, you would all agree to have that included in the Act. This is something that should apply.

Do I have any time left, Mr. Chairman?

[The Chair, Conservative, Gord Brown]

You have 15 seconds.

[Serge Cardin, Bloc, Sherbrooke, QC]

One witness told us that copyright is not compensation, but rather, a reward.

[Hélène Messier]

Ah, ah!

[Serge Cardin, Bloc, Sherbrooke, QC]

If the bill, as currently worded, results in potential lawsuits that have been estimated at $74 million—some are even talking about losses of more than $100 million—does that mean that the government will be penalizing authors and creators by taking away their reward?

[Danièle Simpson]

How could writers--

[The Chair, Conservative, Gord Brown]

We're going to have to move to Mr. Del Mastro for five minutes.

[Danièle Simpson]

How could writers earn a living if they weren't paid?

[The Chair, Conservative, Gord Brown]

I'm sorry; we're moving on to Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much, Mr. Chairman.

Thank you to the witnesses today.

There has been a lot of talk about how artists or creators would have to spend all their time in court trying to defend their rights, but really the purpose of establishing statutory damages in the law—and I'm sure you have an understanding of statutory damages—is not actually having a burden of proof to show that you've suffered a monetary penalty. You don't have to quantify that, which in court is always, frankly, the most difficult thing to establish in this type of case. The fact that there are statutory damages put into this bill does provide protection and discourages people from infringing copyright.

You talked a little bit about some of the exceptions. I'm interested in getting your opinion on technical protection measures. You didn't touch on those, but I would like to know what your position is on them.

I'm also concerned that there is a misunderstanding that inserting education within fair dealing actually attacks the collective, which is not the case. In fact, as I have said many times to the committee, if you look at the ruling of the Supreme Court of Canada and then look at what was established in Berne, the bill is entirely consistent.

I would very much like, though, to get your opinion on technical protection measures.

[Alexander Crawley]

I did mention in the statement that for the individual creators we represent, we have no objection to the use of technical protection measures, but they don't give us what we need individually. As for the big corporate players and so on that think they can make a lock that nobody can pick, good luck; individual creators are finding much more innovative ways of getting to the market, and we will continue to do so if our right to fair compensation is well represented in this bill.

We don't object to the locks; I know that a lot of the so-called “copylefters” do. They don't think there should be any locks at all. Everything should be free if you own a phone. We're not there, but we don't think TPMs are the solution. They are not the single solution. They're not the solution for individual creators.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you. I don't think everything should be free. People should be paid for what they do.

Go ahead.

[Hélène Messier]

I can tell you, Mr. Del Mastro, that as far as Quebec publishers are concerned, locks are not a solution. First of all, it is impossible to lock works published in hard copy. As for digital works, they have decided instead to use watermarks because they wanted a consumer-friendly solution that would make it possible to move from one platform to another. So, if you buy a book on the Kindle platform, you can also read it on another platform. Publishers wanted to respond to that consumer demand.

I don't agree with you that the Canadian legislation is consistent with our international obligations. And I am not the only one to be saying that. A number of people have testified to that effect in front of this committee. I am thinking of Ysolde Gendreau, Georges Azzaria, the Quebec Bar and a number of international associations. That is a lot of people who believe that this bill is not consistent with Canada's international obligations.

[Dean Del Mastro, Conservative, Peterborough, ON]

I've met with dozens and dozens--perhaps as many as 100--different legal experts on this bill, and I have as many as 100 different legal opinions on it, so I'm not surprised that some folks would come in and say that maybe it's not consistent, and then other people would come in and say it is absolutely consistent. Ultimately it was written largely or almost entirely by industry. Their legal experts have actually written the bill subject to those tests. We believe that legally it brings us up to our WIPO treaty requirements and is respectful of both the Supreme Court ruling and the Berne three-step test. That's the approach of the bill.

You actually outlined exactly where I think the government is going on TPMs, which I think is important. You talked about how the book industry, for example, has actually decided not to use locks. They've actually done that in the music industry with CDs as well. Consumers wouldn't accept them, so they don't use them. Other industries, such the movie industry, are now producing Blu-rays, and they are selling them with digital copy on them. Ultimately the market is going to drive whether locks are accepted or not and how businesses choose to use them, but that's what the bill respects.

Thank you very much for your time.

[The Chair, Conservative, Gord Brown]

That's going to have to be the last word, Mr. Del Mastro.

Thank you very much to our witnesses.