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.

On the agenda

MPs speaking

Also speaking

Clerk of the Committee  Mr. Andrew Bartholomew Chaplin
Nathalie Des Rosiers  General Counsel, Canadian Civil Liberties Association
Howard Knopf  Counsel, Canadian Civil Liberties Association
Alexander Crawley  Executive Director, Professional Writers Association of Canada
Hélène Messier  Executive Director, Société québécoise de gestion collective des droits de reproduction
Danièle Simpson  President, Union des écrivaines et des écrivains québécois (UNEQ)

11:05 a.m.

Conservative

The Chair (Mr. Gordon Brown (Leeds—Grenville, CPC)) Conservative Gord Brown

Good morning, everyone. I call this 12th meeting of the Legislative Committee on Bill C-32 to order.

Go ahead, Madame Lavallée, on a point of order.

11:05 a.m.

Bloc

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

I'm a little surprised by the agenda this morning. It doesn't strike me as being particularly balanced.

We have one hour scheduled with a charming and intelligent witness. We know that because have already met her. That witness has already presented its views. I can understand that she may be representing another organization. However, giving one full hour to one organization, and then one full hour for three other organizations that are directly concerned by copyright is somewhat imbalanced, in my opinion.

I was wondering if you might make another suggestion, Mr. Chairman.

11:05 a.m.

Conservative

The Chair Conservative Gord Brown

I will turn to our clerk. He can explain how we arrived at this particular panel.

11:05 a.m.

The Clerk of the Committee Mr. Andrew Bartholomew Chaplin

In consultation with the analysts, we set it up like this because the brief of the CCLA is rather wider than what is going to concern the folks in the second panel, the Professional Writers Association of Canada, COPIBEC, and UNEQ.

That's the rationale behind why it was set up that way. Originally we were hoping to get the Canadian Bar Association as well, but they weren't able to muster their witnesses on short notice, when the panel we originally considered was unable to come together for the first hour.

11:05 a.m.

Bloc

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

I understand, Mr. Chaplin, that you may have had trouble scheduling groups of witnesses. It is a very complicated exercise; a three-dimensional puzzle, so to speak. I know it was complicated because we received the agenda yesterday evening at the last minute. I didn't even have time to call you back yesterday, because by the time we received our agenda, you had probably already left, which is perfectly understandable.

However, Mr. Chairman, would it be possible to cut back the time allocated for the first witness, in order to leave more time for the second group of witnesses? I don't know whether they have all arrived yet… perhaps they're already here.

11:05 a.m.

Conservative

The Chair Conservative Gord Brown

Thank you, Madame Lavallée. That is in fact what I was intending on doing.

We're doing our best to put the panels together. As we move out over the next few weeks, we have had more time to plan for those panels, and I think you're going to find that there's more balance in them and that we are going to see even more. We do have approximately 170 or so witnesses who wish to see the committee. I don't believe we're going to see all of them, but as we move forward, you'll see that there is going to be more balance in them because we've had more time to give people notice. We do appreciate our witnesses' coming today. If we get moving with them now, then we will have more time for the other panel.

That said, we have Nathalie Des Rosiers and Howard Knopf with us for the first panel today. They represent the Canadian Civil Liberties Association. Please go ahead; you have five minutes.

February 10th, 2011 / 11:05 a.m.

Nathalie Des Rosiers General Counsel, Canadian Civil Liberties Association

I would like to begin by thanking the committee for inviting the Canadian Civil Liberties Association to appear this morning to present its views. I will be as concise as possible so that everyone has a chance to be heard.

Founded in 1964, the Canadian Civil Liberties Association is a national organization dedicated to the protection of civil liberties in Canada. It has expressed its views on a number of occasions in the past with respect to the need to protect freedom of expression, the right to access to information and the protection of privacy. It is in that context that it is making its submission today.

With me this morning is Mr. Howard Knopf. He is a member of the Association and specializes in copyright law.

The CCLA has five submissions to make with respect to the bill.

Our brief is currently being translated, but you will receive it shortly. I will try to be as specific as possible, and I will, of course, be available to take your questions. The first part of my presentation will be in French, and the second, in English.

The membership of the Canadian Civil Liberties Association includes artists, authors, as well as educators, teachers and members of the public. It therefore has a special interest in the possibilities and repercussions of copyright reform.

Our first concern is that consideration must be given to the fact that we are all, in different respects, both consumers and producers of copyright. It is therefore important that the legislation properly recognize that duality in each community.

Copyright is obviously a core issue in terms of the debate and discussion that occurs in society. We know that the people who produce copyright have been consumers in the past and will be again. A society that seeks progress and innovation wants to ensure that all its members have full and easy access to information that allows them to expand their reflection and their social contribution.

CCLA wants to make five submissions.

The first is on freedom of expression. We note with great interest and approval and happiness that there is a recognition of parody in the bill and that parody and satire are protected and included in fair dealing. Our perspective has been that much criticism in our society, much freedom of expression, is expressed in the form of parody and through a sense of humour, and indeed a lot of political criticism takes the form of parody and satire. It is very important that they be protected under fair dealing.

I think, however, we are inviting the committee to consider the inclusion of the words “such as” in the fair dealing provisions under proposed section 29, with a view to ensuring support for the way the Supreme Court has considered the matter in the CCH decision, to support a constant recognition that fair dealing ought not to be a closed category, and to allow some flexibility in the system. In our view, that would be a way to ensure a proper interpretation of section 29 without causing a dramatic change.

We further note that Bill C-32 does not contain a blanket immunization against statutory minimum damages for educational institutions, such as exists in other jurisdictions--the United States, for example. This indeed would be a way to better protect the access to information through the mechanism of education.

Finally, with respect to fair dealing, an exception CCLA is particularly concerned about is the proposed educational exception for educational use of publicly available material. It is good, and we should have it, but the law is for everyone. To specify an exception just for educational use raises the prospect of this being interpreted a contrario in a way that would invite a different interpretation for the other provisions of the act, so that's a concern.

I think it's a concern that could be met by more cumbersome language that could be specific without changing the generality of what has been done, but it would be cumbersome language. Our view is that it's not necessary to have specific exceptions for education. Generally, I think people can download what's publicly available if it's done as fair dealing, and there's no need for the specific educational exceptions.

The second part of our submission is with respect to digital locks. In our submission, digital locks ought not to trump users' rights. The anti-circumvention provisions of Bill C-32, as they presently stand, may trump users' fair dealing rights and other users' rights. This was confirmed, I think, in testimony that you heard before.

In this context, I think we have to make sure that we give the citizens the ability to protect themselves against threats. It's completely insufficient to say that Bill C-32 would allow for these exemptions--

11:15 a.m.

Conservative

The Chair Conservative Gord Brown

We're going to have to cut you off there. We'll get into it during the questioning.

We'll go to the Liberal Party and Mr. McTeague. You have seven minutes.

11:15 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

I'm almost willing to give you, Madame Des Rosiers, a little bit more time to talk about TPMs. If you don't, I'll give you a minute or so if you want to wrap up.

11:15 a.m.

General Counsel, Canadian Civil Liberties Association

Nathalie Des Rosiers

I'll just conclude the overview of our position in one minute.

11:15 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

I do want to go down that road with you.

I know the other parties will be very generous as well.

11:15 a.m.

General Counsel, Canadian Civil Liberties Association

Nathalie Des Rosiers

I think it's dramatically important that we ensure that digital locks do not trump fair dealing rights; particularly, we consider that Canadians have to protect their privacy on the Internet, and we should be concerned to ensure that the privacy protection occurs throughout the bill and gives Canadians that possibility.

Thank you.

11:15 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Thank you.

Mr. Knopf and Madame Des Rosiers, merci.

Is your concern about insufficient protection of privacy specifically related to TPMs? Is this what you're...?

11:15 a.m.

General Counsel, Canadian Civil Liberties Association

Nathalie Des Rosiers

We're concerned that copyright reforms must fully comply with existing provisions. Although it contains exemptions to anti-circumventions to enable citizens to protect their own privacy, this can be rendered completely illusory because it does not allow people to sell the device that would protect their privacy. I think the average citizen would not be able to invent that device on his or her own. That's the concern. By preventing people from selling that device, you're leaving this entire field unexplored.

We should not be preventing technology from continuing to be explored. We know that companies will continue to want to have more information about their consumers and be very clever about this. At this stage, I think is our concern is to try to curtail the ability of the market to respond by imagining ways to counteract these invasive provisions.

11:15 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Would you be satisfied if the Privacy Commissioner were to provide an opinion relative to the bill as it is currently drafted?

11:15 a.m.

General Counsel, Canadian Civil Liberties Association

Nathalie Des Rosiers

Yes, I think for us the extent to which there could be supervision and evaluation.... I would go a little further in evaluation now, but it should be a continuing evaluation. We have an evaluation of this bill at five years. Because technology moves very fast, I think that in some cases it may be useful to invite the Privacy Commissioner to do an assessment yearly or every two years to make sure that indeed Canadians are in a position to protect their privacy.

11:15 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

I'll shift gears here to the exception on education. Are you comfortable with this? Exactly what would your recommendations say?

11:15 a.m.

General Counsel, Canadian Civil Liberties Association

Nathalie Des Rosiers

Our recommendation is that, as it stands, it raises the prospect of it being interpreted a contrario. Because it specifies “for educational purposes”, you can download based on what would be an implied licence. If it says “print”, you can print. It does raise the prospect that outside the educational institutions, you could not do it.

For example, I'm a law professor by training. At work, I can print, but when I go home, I can't. Indeed, I think we would want to make sure it's protected. People would say it's research and so on, so maybe it's protected. I'm just concerned about the way in which it could be interpreted. That's the essence of our objection here.

11:15 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Mr. Knopf, the last time we led off, I don't think you had an opportunity to respond to something that may be outside the ambit of the interests of the Canadian Civil Liberties Association, but I wanted to get your impression. You may be wearing two hats here; it's up to you, and I leave you with that discretion. Do you believe the penalties in the bill, the statutory damages, are sufficient, too high, or--as in my view--too low?

11:15 a.m.

Howard Knopf Counsel, Canadian Civil Liberties Association

Mr. McTeague, as a lawyer, I try to wear only one hat at a time, so today I'm here with Madame Des Rosiers. I'm here for the CCLA.

11:20 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Can we expect you here a third time, Mr. Knopf?

11:20 a.m.

Counsel, Canadian Civil Liberties Association

Howard Knopf

Peut-être.

I can tell you that you won't hear from me in my personal capacity.

11:20 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Maybe I'll get a chance to talk to you a little about it afterwards.

11:20 a.m.

Counsel, Canadian Civil Liberties Association

Howard Knopf

I think the question is probably a fair one for the CCLA, and although Madame Des Rosiers will have the last word and it's not in our brief, I'm quite confident that she and her organization would not want to see overly repressive and disproportionate penalties levied on individuals or on educational institutions.

One of the things that is specifically in our brief—she didn't get a chance to get to it, although she alluded to it en passant—is there's a very good need for, and other organizations such as the AUCC have suggested there should be, a specific provision in the bill whereby if an educational institution or anybody involved with an educational institution believes in good faith that they are engaged in fair dealing, such a situation should be immune from statutory damages.

There's an exactly similar provision in the United States that has been there since 1976. Nobody's complaining about it. There's no reason that we shouldn't have a similar provision in Canada. It's very simple.

11:20 a.m.

Liberal

Dan McTeague Liberal Pickering—Scarborough East, ON

Is the definition of “fair dealing” in the United States or around the world acceptable to our definition of “fair dealing”? One jurisdiction may take a very different--