Evidence of meeting #12 for Bill C-32 (40th Parliament, 3rd Session) in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.
A recording is available from Parliament.
Conservative
The Chair Conservative Gord Brown
All right. Thank you very much.
Go ahead, Mr. Lake, for seven minutes.
February 10th, 2011 / 12:35 p.m.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Thank you, Mr. Chair.
I just want to clarify: all three of you are opposed to notice and notice in favour of notice and takedown. Is that fair?
Executive Director, Professional Writers Association of Canada
Yes. We'd go further if we could, but that would certainly be a step in the right direction.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
I always try to relate this to real-world situations. I think about people who might, for example, post a video of a child doing a dance routine or a gymnastics routine or something like that, and someone might have a concern about copyright there and send a notice. You would advocate that regardless of whether there's an actual infringement or not, if someone says that there is, automatically that video that someone is trying to share with their family should be taken down right away, immediately. It could be a kid reading a book on camera or something like that.
Executive Director, Société québécoise de gestion collective des droits de reproduction
No, I can give you a specific example.
Two years ago, we used the U.S. notice and takedown procedure to shut down an Internet site. That Internet site was selling illegal reproductions of books for educational purposes. We did an investigation, prepared a file, signed a statement under oath, forwarded it to a U.S. Internet services provider and the site was shut down. So, we're not talking about minor use; we're talking about serious use, which had an impact on the rights of creators. The site was shut down on the basis of solid allegations, that were verified, and on a solid case that was substantiated. We're not talking about someone acting on a whim—if he gets up one morning and decides he is going to have a website shut down because he doesn't like it. We are mainly talking about the possibility of shutting down sites where it can be demonstrated that they have a serious negative impact. On the face of our own documents and by looking at the site, we knew that it was an illegal operation, and the site was shut down.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
That's fair. Everybody's on the same page as far as that kind of commercial infringement goes. Nobody opposes that, but notice and takedown would actually mean that if somebody did take issue with the video of the child reading a book or singing a song or doing a dance routine, it would automatically have to be taken down, whether there's an infringement proven or not, right? Am I correct?
Executive Director, Professional Writers Association of Canada
For our part, I think the graduated response is the thing. We don't want to go after widows and orphans. It's a culture that's not working. That approach is not working. However, as you've heard before at this committee, we need a test of what makes it an original work so that the definition would be clear for everyone who was using it--you know, the USG.
The other thing is that as we understand Bill C-32, Canada would be the only place in the world where a web service such as YouTube wouldn't have to pay anything to the owners or licensees.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
To be fair, we're talking about different issues here, because under notice and takedown, it wouldn't matter whether we had the definition you're talking about or not. There's no proof of infringement; you just ask for it to be taken down, and it has to be taken down regardless of whether there's infringement or not.
I would argue that under notice and notice, there is a graduated system. You send a notice, and the person who put on the clip in question, or whatever it is that's in question, gets that notice. They now are aware that someone thinks they may be infringing and they have a decision to make. If they make a decision to keep it up, then legal action can be taken.
We do live in a country where due process is important. I think this is an important question for most families, considering how they share their lives with their friends and the world in general in this new digital world we live in. I think they would have real concern with the fact that if someone says they're infringing, automatically they're assumed to be infringing, and something is ripped off the Internet.
President, Union des écrivaines et des écrivains québécois (UNEQ)
The person who receives the notice is not required to do anything. On the other hand, based on what you just said, if that person does nothing, the person who feels he or she has been adversely affected will have to go to court and launch a legal proceeding. We always come back to the same problem, which is that the injured party has to go to court, whereas if--
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
No, excuse me. Just to correct the record, there is no proof of infringement or injury at that point. Someone says they've been infringed upon, but there's no proof they've been infringed upon, and they may not have been.
President, Union des écrivaines et des écrivains québécois (UNEQ)
In that case, the notice and takedown system should perhaps apply to cases where there is certainty. It's not just a matter of requesting the takedown and then having it take effect. That is not what we're asking for. We want to avoid a situation where the person whose actions have adversely affected the artist can continue what he is doing without there being any consequences, unless the artist takes legal action. That is the point we want to emphasize here.
Executive Director, Société québécoise de gestion collective des droits de reproduction
In addition, the injured party will not tend to take legal action given that in cases involving non-commercial infringement, pre-set damages will be between $100 and $5,000. Who is going to launch a lawsuit in order to receive $100? Who?
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
That's the point, though. We don't know whether the person's infringed. You can't live in a world where we automatically take things down. It doesn't work that way. It doesn't work that way in business cases. If you walk into a store and you feel that you weren't treated fairly, you can't shut the store down or tell them they have to stop selling a certain product. Here you just tell somebody, and automatically they have to stop doing it. There's a process in place, and why shouldn't it be the case here?
Executive Director, Société québécoise de gestion collective des droits de reproduction
Do you really believe that creators and copyright owners have so much time on their hands that they will spend it sending out unnecessary notices? In my opinion, if they take the trouble to report a possible infringement, it's because they have serious suspicions. Furthermore, in order to use a work, you have to request the prior authorization of the rights holder. If the rights holder has not given his or her authorization, there almost certainly is infringement of copyright. People do not just get up one morning and decide to send out dozens of notices for no reason.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Okay.
I want to talk a little bit about fair dealing for education, if I could, just to understand the position of Ms. Simpson. Obviously you're not in favour of it. What is the specific problem you're trying to address with the issue of fair dealing for education that isn't solved by the six factors that Supreme Court has determined?
President, Union des écrivaines et des écrivains québécois (UNEQ)
If fair dealing applies to an entire sector in society, I don't understand how you can think that will be easy to arrange. You are asking writers to provide the raw material used in education, and at the same time, you are saying to them that, if the educational institution can prove that it is dealing fairly, they will have to provide the fruits of their labour free of charge. A writer cannot possibly cope with that kind of situation. It's impossible.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
But that's not the way it works. The Supreme Court has the two-step test. The first step determines if it's fair dealing. If it is, then there are six factors they have to consider, one of which is the effect of the dealing on the work. Will the copying of the work affect the market for that work?
President, Union des écrivaines et des écrivains québécois (UNEQ)
All of that will be decided in court.
Conservative
The Chair Conservative Gord Brown
Mr. Lake, that's going to have to be it.
We're going to move along to the Liberal Party.
Mr. Garneau, go ahead. You have five minutes.
Liberal
Marc Garneau Liberal Westmount—Ville-Marie, QC
Thank you very much, Mr. Chairman.
It was interesting to hear the discussion between Mr. Lake and the three witnesses. My conclusion is that you have a much better understanding of the legislation than does Mr. Lake when it comes to the notice-and-notice approach.
My first question is addressed to the witnesses involved in collective copyright administration, and specifically Ms. Messier, but the others should feel free to comment as well.
Those who believe that this exemption for education is not a problem often say that we are not talking about educators copying books in their entirety, because that would obviously not be acceptable. I would like to be given some idea of the statistics in that regard. When you collect money from educational institutions that use authors' works, what is most often involved: books in their entirety, excerpts or chapters? What is used more often? You can all respond.
Executive Director, Société québécoise de gestion collective des droits de reproduction
The licenses we grant to primary and secondary schools, CEGEPs and universities never authorize the reproduction of a work in its entirety. In primary and secondary schools, they are authorized to copy the lesser of either 10% or 25 pages. As for universities and CEGEPs, they can photocopy and reproduce 10% of a work. They can also go so far as to reproduce an entire chapter or article, as long as it does not represent more than 20% of the collection. Those excerpts alone represent, just for Quebec, more than 168 million copies annually. These are copies that are reported to us. It is safe to assume that some of them are not. So, that represents the equivalent of 840,000 200-page books which are reproduced annually in Quebec educational institutions—and these are only excerpts.
Liberal
Executive Director, Professional Writers Association of Canada
It's very similar for Access Copyright. As affiliates, we can certainly make sure that they provide you with whatever statistics we have. There's a per student rate, which is currently $3.63, and then there's 10¢ a page thereafter for up to 10% of a work. If you need more than that, then you can negotiate a higher licence.
This is in the interest of publishers, obviously, as well as creators. If they could just go ahead and copy whatever they wanted to copy because they were educators, we'd lose our educational publishing industry. That's our fear.
