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

[John McAvity]

That's a moral right. With respect to the other rights, they are negotiable under licensing agreements. That's all a matter of negotiations about what the artist would retain and what the museum would acquire.

In fact, there is a considerable amount of misinformation about this. Most people buy paintings from dealers and they have no idea what rights they are buying, if any, when they acquire a work. When people land on the doorstep of the museum and say they would like to donate a painting to us, we don't know what we're accepting. We don't know where the copyright is. We have to assume it's still back with the artist.

That gets us to the problem of orphan works, which we've identified, where we cannot find the artist or we cannot find the estate of the artist, and yet we are legally liable for paying fees or getting permission in order to publicly display a work of art. It's a big problem.

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

Don't you believe that a copyright collective in the visual arts field would make it possible to more effectively trace the authors of what you call orphan works?

[John McAvity]

We've had collectives in place for 25 years, almost 30. Very few artists have actually signed up to them, and we do not find them to be very effective, to be quite honest with you. That's one area.

On the droits d'auteur, I wanted to come back to that, because that's a major issue that has been before this committee. Our position is not against it. We have called for further study on it. We are concerned that it could have a very negative impact on what is already a very fragile art market in Canada. What we want to see is the art market developed in Canada. What we want to see are Canadians buying more works of art, supporting our artists, and creating a healthy marketplace in Canada. It's very fragile right now.

If you look across the country, you're going to see condominiums and suburbs having been expanded at a record rate. What are Canadians buying to put on their walls? Very little in the way of contemporary Canadian art. We would like to change that.

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

Don't you think that's a wheel that's turning and that, once there are artists' resale rights, that will make it possible to really create a community of visual artists who will want to stay in Canada and Quebec and who will benefit from the resale of their works at galleries?

[John McAvity]

The only artists who actually benefit will be those whose work goes to auction, and very few artists' works go to auction. Yes, CARFAC, which was here a week or so ago, gave the example of an Alex Colville painting that sold for $1.5 million. Well, he's a very successful artist. The amount of revenue he would receive would be very insignificant, in terms of the other revenue he has. How is this right going to benefit the average artist?

My mother was an artist. Her work sold a little bit but not much. It's never gone to Sotheby's. It's never gone to Christie's. It's never gone to any of the big auction houses. I wish it would, but it isn't....

The reality is that 98% of the artists will not benefit from this.

[The Chair, Conservative, Gord Brown]

All right. Thank you very much.

We'll move to Mr. Angus, for seven minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you very much.

I'm interested in talking a bit about the interlibrary loan situation and the regulations, particularly those in proposed section 30.2 of this bill.

Many years ago I was working on and researching a book. I needed a master's thesis that had been published. I had to go to the local library. It took about two or three weeks for it to come up in the mail. It came in the mail. I had it for 20-some days, and then I had to send it back. Call me a copyright criminal, but I made myself a copy because I needed to continue doing research. I still have that copy, and I've referenced it many times.

I see how amazing it would be in a digital realm, where I could get a PDF of it and it could be there momentarily, and yet, within the provisions of the bill, this copy would have to miraculously disappear or be burnt after five days.

Why would we put such arbitrary limits on the ability of research and impact our ability to use the library capacity of this country?

[Ernie Ingles]

Let me make a start at that, and then I'll turn it over to my colleague.

The other gentleman asked if there were other issues with regard to the act that we have some concern with, and this is one. We can deal with the letter of the prospective law. We can, through technology means, see that the copy is eliminated from the technology that was used to deliver it. What a student or someone at the other end may do to print it off and keep it in the way you've been referring to, we're not too sure.

It is an issue that we would like to see eliminated to some degree in this act. Having said that, we consider it to be an issue that we can live with. There are other issues, like the education issue, that we are much more concerned about. The essence of it, I think, is whether or not there has been substantive damage done to that creator or that author in allowing that to occur. In our judgment there is not.

I'll turn it over to Brent.

[Brent Roe, Executive Director, Canadian Association of Research Libraries]

I think Mr. Ingles said our bit. Certainly Bill C-32 allows delivery of a requested item to the desktop of the person who requested it. This is something that is not allowed under the specific exception in the current Copyright Act, so this is real progress, and we're happy about that.

On the necessity that electronic access to that delivered material disappear after five days, as has been said, we'd prefer it weren't there, of course, because researchers do like to use material in electronic form so that they can cite it using electronic means as well so that they can class it with other things they may have. This is modern research, so that's something that should be considered by the committee.

Having said that, I would like to stress that what is in Bill C-32 is progress.

[Charlie Angus, NDP, Timmins—James Bay, ON]

To the students federation, some of these provisions strike me as so out of touch with the real world that...why have them in there? I mean, certainly the libraries will meet whatever letter of the law they're asked to. They will follow that. But you get a piece of research, you cite it for a paper, it goes up in smoke in five days, and then you're thinking, “Did I quote it correctly? Do I have access to it?”

Are you not simply going to somehow make a copy at least for your own ability to do your work? What's the point of looking at it and then having it disappear?

[Noah Stewart]

Yes, certainly I think this is one of several provisions that's out of touch with the reality of learning in modern post-secondary education. I think you're right; in many cases students who are using these works will not have run the ambit of uses they need within five days. When you think that a course will often last 120 days, 90 days, they are working with tools throughout that.

I think it's similar to another worrying provision, as mentioned by my colleague, in proposed section 30.01, where for the digital delivery of lessons for online learning, for e-learning, there's a provision that requires that within 30 days of the close of a course, all course materials be destroyed. This is both by the students who are using the materials and the already overworked teachers who have spent many hours preparing the course, preparing their lectures. All materials must be destroyed.

Both these provisions, I think, go to a fundamental lack of understanding of how learning occurs in the academy. The students don't simply take a course. Students don't simply write a paper and then move on to the next course and never think about it again. If you think about a biology student, they take a first-year organic chemistry class, then they take a second-year organic chemistry class, then a third-year. They need to be able to continue to access materials for their courses. They need to be able to take the language that they've used and continue to use it.

I think in the case of interlibrary loans, this is a provision that, for one, would be very hard to enforce. The Canadian Library Association in the last round of copyright reform with Bill C-61 said there was no possible way that they have the resources to enforce this kind of thing.

It also shifts the role, fundamentally, of librarians from being people who are there to assist learning, to facilitate learning, to facilitate education, to being copyright police, and I think that also sets a somewhat worrying precedent. I think that's also something that's very undesirable in the modern institution.

I think more than anything else these kinds of clauses are simply unnecessary. There isn't a problem right now that we have rabid students, foaming at the mouth, just waiting to get their hands on every work in the library so they can copy them and put them on the Internet. I think that's simply not the reality.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Wouldn't that be great if they loved learning that much?

It seems to me, and this is my question here, that they're treating digital learning as though they were the “one book”--so the library had one book and other students have to be able to access that one book, or a chapter from the book.

I want to go back to our librarians in terms of section 32, the rights of the blind. There's this fear if you make a copy in big enough print that a person who cannot see well is going to access it, that there's going to be a flood of people coming to the library and demanding copies of books so they can see them if they are visually impaired. Meanwhile, the iPad allows you to blow it up to as big a font as you want.

Why do you think that's in there?

[Brent Roe]

Certainly that had its time and place, that particular provision in the current Copyright Act about the necessity to find commercially available copies of large-print books, whereas alternate formats can be made available to persons with disabilities in other formats.

Certainly, in order to help us serve our students with disabilities, we would prefer that this particular section disappear in an amended act.

If something is easily available commercially, great, we could buy it. But often it's not, and often it's very difficult to find a large-print edition for sale within the time that the student needs to use it and so on.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We're going to move to Mr. Fast for seven minutes.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair.

Thank you to our witnesses. I want to thank all of you for the testimony you've given us, especially on the fair dealing aspects and how education fits into that. I think generally you're all supportive of the balance we've tried to strike with respect to fair dealing.

A red flag did go up, Mr. Molenhuis, when you said that this bill will be criminalizing the circumvention of digital locks. I believe that's what you said. Did you mean that? Because I've read this act through a number of times now, and there's nothing that makes circumvention of a digital lock criminal.

It does impose civil remedies. It imposes some statutory damages. But I don't see anything in here that criminalizes the conduct in any way. Do you want to retract that or did I misunderstand you?

[David Molenhuis]

Well, yes, I would. I'm quite a verbose character--

[Voices]

Oh, oh!

[David Molenhuis]

--at the best of times. My apologies.

[Ed Fast, Conservative, Abbotsford, BC]

I understand. I was a university student once as well, so I do understand that.

I'd like to follow up a little further on the digital locks. As you know, the bill actually provides a section that allows the minister to pass regulations that would allow digital locks to be circumvented in additional cases, more than just those set out in the act. That's to provide the kind of flexibility that is required to meet the needs of the digital age.

Undoubtedly there will be cases where it is justified to circumvent digital locks, but I wanted to put this to you. If there is a general right to circumvent for fair dealing purposes, I think you would agree with me that most consumers over time would acquire the technology to be able to circumvent, because all of us will eventually have some reason to access fair dealing content. Once everyone has that available, it renders digital locks meaningless, because everyone can avoid them.

Now that we've done what we've tried to resolve with this act, which is to bring clarity to this and recognize the realities of the digital age, yet at the same time restrict activities so that theft doesn't go on, so that stealing of copyrighted content doesn't go on, if you eliminate the digital locks by allowing circumvention on a general basis for fair dealing purposes, you've essentially opened up that door again. You will have consumers across the country who, essentially with the push of a button, can circumvent those locks and go after not only fair dealing content but also after copyrighted material that they shouldn't go after.

Now, I do believe that most Canadians are law-abiding citizens, but you and I both know that there are many among us who will rip off those who create content. So I'm wondering how you would justify to the creators of content that essentially what you're going to do is eliminate digital locks altogether by allowing the circumvention for fair dealing purposes.

[Noah Stewart]

Thank you very much for the question.

I think there are a couple of things. Just to start off with, we're not just talking about circumventing digital locks for fair dealing. We're talking about the broad range of rights, which includes, if you purchase a work, having the right to then use it. So if you buy a CD, it's about being able format-shift it, which is provided for in this bill, whether or not a digital lock exists on it. We're talking about a range of rights that is broader than simply fair dealing.

To go with the beginning of your question, it's true that the act prescribes methods by which the Governor in Council can prescribe regulations to allow further uses. But I think we start off at a problematic point when we say that perfectly legal and legitimate uses will become...I guess not criminalized, but we'll subject somebody to civil remedies, to civil liability, for circumventing the digital lock on their e-textbook, for example, to quote a passage from it, or on a movie, in order to take a piece out to put in a class presentation, and so on and so forth.

I think in terms of access to tools to circumvent digital locks, we live in a digital world, and there are hundreds of countries in it--a couple of hundred countries in it--and I don't think we're going to exist in a world where if somebody with access to the Internet wants to find one of these tools, a law in Canadian law is going to prevent them from doing so. I think the scenario we're getting into here, where you're saying that by adding this liability, by saying that any person who circumvents a digital lock, regardless of their purpose, is liable for damages, that it's somehow going to stop them if their use is legitimate.... For one, I don't think it's the case.

For two, it doesn't get at the heart of this. What we're talking about--and I think what the government was seeking--is to stop large-scale commercial infringement, to stop the Pirate Bay types of sites that are responsible for large-scale infringement. We've just seen a lawsuit filed under Canadian copyright law against isoHunt, a Canadian BitTorrent site. I think we have the tools in the current law to go after these large-scale infringers, and adding protection for digital locks isn't actually going to do much. It will not do much to prevent--

[Ed Fast, Conservative, Abbotsford, BC]

With respect to the isoHunt case, that may be litigated. You may assume that the tools are necessary to enforce copyright, but the reality is that case hasn't been heard. My understanding is that the legal expertise appears to be that this may be a losing case. We need this copyright law to ensure that copyright holders have the ability to enforce their rights.

Going on to Mr. Tupper, I really enjoyed your presentation. You articulated some of your support for the education exemption and the expansion of fair dealing rights, and you listed a number of things you cannot do right now. It was early on in your presentation.

Could you expand on that a bit? Are these things that you will now be able to do under our Copyright Act?

[Jon Tupper]

Mr. Fast, for me personally, as somebody who runs a museum, if I were to say, “This is going to be great for me, what will I use it for?”, it would be having works available for educational purposes on the Internet. That's the bottom line for me.

It has prevented us from showing a lot of works in our collection that we've already paid for, that we pay exhibition rights for. We want to show them for educational purposes, whether it's lesson plan activities for teachers to use at schools, or for people to look at artworks by Canadian artists.

We want to provide Canadian content on the Internet. That's one of the things we all want to do.

[Ed Fast, Conservative, Abbotsford, BC]

And the Copyright Act will enable you to do that?

[Jon Tupper]

We feel it will, yes.

[Ed Fast, Conservative, Abbotsford, BC]

All right.

I'll go to Mr. Ingles for one last question.

You also articulated your support for the balance, especially on the fair dealing provisions. You mentioned that this bill will continue to respect the right of copyright holders to be remunerated, including those who publish textbooks.

These changes to the Copyright Act are going to benefit your industry. Perhaps you could articulate how your business is going to serve students and universities, and others, in a more effective way.