Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 17th, 2011

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

Thank you, Mr. Chair.

I'm interested in proposed section 29.22. It jumped out at me when I read the bill, and it has received very little attention. It's the idea that you can make copies “for private purposes”.

Let's say my relatives actually did want to see me, and I went to a big family gathering where there were hundreds of relatives. If I thought that for a private purpose I'd like to make a copy of my new favourite movie, which I just bought, I could make 300 copies and give them out at the family reunion. That would be for a private purpose, would it not? It would not be the same as a private use.

Why do you think the language is there, and how do we fix it?

[Maureen Parker]

Well, you'd be very popular with your friends and family, but it wouldn't be very good for us. Really, that's what we're talking about: an unspecified number of copies going into the marketplace and depriving us of income.

In the audiovisual business, consumers like DVD movies and TV box sets, and that's a revenue stream that we get through our collective agreements. When a bill proposes to give our product away, so that you could make a copy of that box set and give it to your 100 friends—or Jill has 800 friends on Facebook--that really would destroy our revenue model, because we get money under our collective agreements for that.

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

So “private use” is more specific, because in private use it would be understood that you are making the backup copies, as opposed to “for private purposes”, which could be any use under the sun.

[Maureen Parker]

They would be unspecified copies.

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

So we would need to change that.

Ms. Fitzgibbons, I'm glad you're here today.

I've spoken with many producers in Canada, or filmmakers, and I get a different picture on copyright from them than what is usually heard around the table. I often hear how restrictive it is and how hard it is to get rights, even for the most basic footage that would normally be in the public domain anywhere else, but which could be locked under obligations to pay. I even hear about the difficulty of just shooting on location; I was told—I don't know whether it's true—that you couldn't shoot at Niagara Falls, because the image with the lights is under copyright by a large U.S. entertainment industry, so you'd have to pay them if you wanted to shoot on the Canadian side of the falls.

In making a documentary now, you would be excerpting footage, but that would be under a digital lock, so it would basically be illegal.

I raised this issue with one of the groups that were very strong on having no exceptions to digital locks, and they said: “Well, there's no problem. You can take a shot of a television screen.”

What does it mean for your industry and your ability to extract works to make legitimate films if you're being treated as though you were isoHunt?

[Lisa Fitzgibbons]

We feel that it's curbing the very craft we're trying to develop. If you can't have the tools of your trade because you can't access the raw material, how are you going to exercise your craft?

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

I'm interested in this issue of defining authorship. I come out of the music business, and long before I came into the business there were nightmare stories that Creedence Clearwater Revival and Ray Charles and everybody used to get ripped off by the publisher. The publisher would take all the rights.

So the rights were defined. There are mechanical rights and performers' rights, but within the ownership of the song itself, every dollar is divided up into two 50% parts. If one 50% share belongs to the author, it cannot be taken away; the publisher cannot take that share. The publisher can take the publisher's share, or part of the publisher's share, and it could be divided up 20 different ways, including among authors, if there are several authors. It's very defined.

Is the question here something that is an industry problem, or is it a legislative problem? How is it that this hasn't been clearly defined in your industry in the way it has been settled in the music industry for 30 years?

[Maureen Parker]

That's a very good question.

It's because the distribution patterns are now changing. We're right in the midst of change. Digital copies look wonderful, and so our work is now widely distributed. What we're really talking about today is copies.

We get a revenue stream from our work and the different forms of exploitation in terms of primary use. If it's in the theatre, or if it's being sold as a TV box set, we get a royalty under our collective agreements, but what we're talking about is compensation for copying our work. For example, proposed section 29.22, if it goes unamended, would allow an unspecified number of copies of our work out into the marketplace, and unless there is some form of compensation regime attached to that through collective licensing, there is no money coming back to the creator. Even if there were a collective licensing addressed in relation to that copying, we couldn't determine who would collect it, because we haven't addressed authorship of the audiovisual work. It's as though we're four steps behind. I can say that most countries in the world addressed this issue a very long time ago.

Just to throw in one last thing, in the U.S. the studios are the copyright holders, and that's because they are the anomaly in the world. They are the complete exception in that the studios have the copyright, but in the rest of the world, authorship is a creator position.

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

Thank you.

I was going to turn it over to my colleagues in the Conservative Party.

Thank you.

[The Chair, Conservative, Gord Brown]

Mr. Fast, you have seven minutes.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you very much, Chair, and thank you to our witnesses.

We have quite divergent opinions here at the table, which is, I suppose, as it should be. When you try to find a bill with balance, you're going to have no one really 100% happy.

I want to bore in on the issue of digital locks again. Some of you haven't been quite clear on where you stand on circumvention.

I think I know, Ms. Fitzgibbons, where you stand. Perhaps I could ask you, Madame Doucet, where you stand on circumvention of digital locks. Just give a short answer, because I'm going to drill down on the issue.

[Brigitte Doucet]

Allow me to answer in French.

[Ed Fast, Conservative, Abbotsford, BC]

Yes.

[Brigitte Doucet]

In fact, our position is that the bill currently provides for a minimum, that circumventing, which is illegal, is only illegal for access to works. We could reproduce any way we want and, if we establish a protection, people could circumvent it legally.

In our opinion, we must not go below the minimum. Ideally, we could have more, but what appears in the bill would be fine with us as a minimum.

[Ed Fast, Conservative, Abbotsford, BC]

You're accepting the bill as it is right now, which prohibits circumvention of digital locks.

[Brigitte Doucet]

It's only for access. That's the minimum.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you. Excellent.

Ms. Parker, would you comment, or Ms. Golick?

[Jill Golick]

I'd like to take that one, because we absolutely appreciate the spirit of the bill in trying to protect our existing business models. What really concerns us most are the emerging and future business models.

We think that with the digital environment we have the opportunity to reach a global marketplace now. That's why I bring you back to proposed section 29.22 and say that if you give away those rights that I have, you're going to impede my ability to profit in the future.

[Ed Fast, Conservative, Abbotsford, BC]

Lets assume we can resolve proposed section 29.22. Getting back to the question, which is circumvention of digital locks, do you feel that anti-circumvention measures support your industry?

[Jill Golick]

Yes.

[Ed Fast, Conservative, Abbotsford, BC]

All right.

[Maureen Parker]

But we think those measures are not stern enough; we think that statutory damages have to act as a deterrent.

We run a union, and the one thing I've learned over the many years of running a union is that you have to have enforcement mechanisms and you have to have deterrence. It's not that we don't trust people; we just have to make the laws enforceable.

[Ed Fast, Conservative, Abbotsford, BC]

Okay.

I think I know where Ms. Fitzgibbons stands, and she would differ with you. She would say that for all fair dealing purposes, consumers should be entitled to circumvent the digital locks that the copyright holders put on their content. Am I correct?

[Lisa Fitzgibbons]

You mentioned consumers. I'm speaking on behalf of documentary filmmakers. We're coming at it from the creator's perspective.

[Ed Fast, Conservative, Abbotsford, BC]

That's understood, but you feel that you should be able to circumvent those digital locks.