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--