Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 15th, 2011

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Thank you, Chair.

Thank you, witnesses, for being here. It's been very helpful to have you stating your positions.

I'll start with the CAUT and then over to you, Mr. Davidson, with the AUCC.

You can appreciate in 2008 I was still trying to go over the ashes of a bill that failed on making RESPs tax deductible, but that'll be for another time.

I did come across CAUT's advisory number three in December 2008. You provided to your members across Canada some guidelines for the purpose of fair dealing, and it was to help, and I'm going to quote, “academic staff know their fair dealing rights and exercise them to the fullest extent”.

The document states that the economic effect of the dealing on copyright owners is “neither the only factor nor the most important factor...in deciding if the dealing is fair”.

I'm wondering if you were actually trying to tell Canadians, your own membership in particular, that a copy can be fair even if it undermines the market for that work.

As for the AUCC position paper--I only have five minutes or less, so I want to ask two questions at the same time, if I could--it seems that your position paper, which you submitted to the committee and which we thank you for, and which you've reiterated here today, suggests that the tests in the CCH should also be brought into law.

It sounds to me like both of you are saying that if fair dealing is extended to education, there's probably going to be the odd case, perhaps even more than we would want, where someone copies work that is in fact undermining the copyright owners' markets, but that doesn't matter, because...and I'm going to quote again, “neither the only factor nor the most important factor...in deciding if the dealing is fair”.

To both of you, is that a fair statement?

[Paul Jones]

You do realize that that's basically a quote directly from the Supreme Court of Canada CCH case, that that's where it's drawn from?

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

[Inaudible--Editor]

[Paul Jones]

What it's saying is that...it lists some factors about whether something is fair or isn't fair, and the economic impact of the dealing is one of those factors. That's not controversial. That's the Supreme Court of Canada.

If you're suggesting that we are trying to find ways--

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Mr. Jones, hold on for a second. You're suggesting that we concretize what has been said by the Supreme Court of Canada, putting aside the fact that this may have impacts on the market beyond what is intended by the safeguards that you proposed here in your submissions in terms of recommendations?

[Paul Jones]

Are you saying that I'm saying we should put this in Bill C-32?

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Mr. Jones, I'm asking whether or not your organization is advocating the possibility of trampling on someone's copyrighted material without any due deference to the fact that they may have to ultimately wind up not doing the work that they've traditionally done or not being compensated for it.

[Paul Jones]

Of course we're not suggesting anything of the sort. What we're suggesting--

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

But your advisory seems to suggest it; in your advisory, you're saying just that.

[Paul Jones]

No, no, it's quoting from the Supreme Court of Canada.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

You're being very selective about what's in the Supreme Court of Canada.

[Paul Jones]

It's quoting from the Supreme Court of Canada.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

But you're being very selective about what's there.

[Paul Jones]

No, no, we listed all six factors there. You can't just take one thing out.

Do you want me to read it? Do you want me to read all the different tests?

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

We've read it, Mr. Jones.

[Paul Jones]

Then why are you just quoting one portion of it?

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

The fact is, why did you choose that one in particular?

[Paul Jones]

Because it's one of the six tests.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Well, I'm concerned, Mr. Jones, that what you're trying to do is in fact provide a situation where you do create an imbalance.

[Paul Jones]

Your concern is misplaced. What we are saying--

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

No, my concern is not misplaced, Mr. Jones. My concern is that you may wind up in a situation where people are in fact not compensated for the work they're doing.

Mr. Davidson.

[Paul Davidson]

I can address that as well.

Mr. Angus talked about some of the witnesses who are concerned about very dire consequences of the legislation. Let's face it, there has been a lot of myth-making on all sides of this issue.

A number of people in the creative community were saying that the ground given to the education community through this legislation was going to significantly disrupt matters. We have proposed that we look at the six fairness factors in the Supreme Court decision and incorporate that in the legislation—all six factors—as being the measured, considered test of what is fair. That's a way of addressing some of the concerns of the creative community.

We're trying to find the appropriate balance here so that we can move forward.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

So am I, and so are we.

Thank you for that, Mr. Davidson, and Mr. Jones.

I only have about a minute, so I'll ask you a final question.

You've suggested that in no way—and no one has suggested it—is there a question of motivation of money here. Would you object to an amendment in the fair dealing exception that says “if there is a significant effect on the existing marketplace, the dealing isn't fair dealing”?

To any one of you, would you support such an amendment?

[Paul Jones]

No, not at the moment. I mean, it's a suggestion and we'll consider it, but I think that's already encapsulated in the CCH fair dealing test.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Any comments on the Berne convention?