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

[Ted East]

We agree with them. I think TPMs are absolutely necessary. To create these online businesses, you need to have the ability to control the use of the content in some way, so we agree with them.

I should say that we are at the beginning of what I would call truly the digital decade in distribution of films. You have Netflix coming into this country last fall, you have Cineplex in digital distribution, you have Apple iTunes, and you have the cable companies doing it, so it's just beginning.

They're competing against each other, and that's what they should be doing. What they shouldn't be competing against is the isoHunts of this world, and yet it would appear—and we haven't fully digested the Ipsos study yet—that the pirates in online distribution have the advantage. They possibly have a bigger market share than the legitimate digital distributors existing today, which is a concern.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you.

Ms. Noss, do you have a comment on TPMs?

[Wendy Noss]

Yes. Thank you.

I keep hearing them called “digital locks”, and in fact they are the mechanism by which these individuals get their content to consumers on the device they want, in the format they want, at the time they want, in a variety of different models. TPMs are what control the access. They enable businesses like Netflix, because you are not going to keep paying your monthly subscription if you can crack the access and download all you want for free.

This is how DVDs are sold now; they are sold with a capability for digital copies to be made. When you're a legitimate consumer of a hard disc DVD, they all come with digital copy capability.

If that's what you choose to do with it, this market is expanded, but this market can only be successful if what wraps around this, protecting it from being an unlimited number of copies, is the copies that the consumer wants and needs.

[The Chair, Conservative, Gord Brown]

That will have to be the last word.

Thank you to our witnesses.

We will briefly suspend to bring in our second panel.

[The Chair, Conservative, Gord Brown]

I'm going to call this 14th meeting of the special Legislative Committee on Bill C-32 back to order.

Mr. McTeague has a point of order.

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

Chair, I realized with the previous witnesses that some information has been put forward in several papers by Professor Michael Geist that suggests somehow that the recording industry itself went after isoHunt legally here in Canada, and I think one of our questioners here had the same view and opinion.

I want it clear for the record that this is clearly misleading and false. It is in fact isoHunt that went to court. CRIA and other organizations, from my understanding, had to respond to that call as a result of a court action undertaken by isoHunt. Call it a pre-emptive move, but it clearly does not support the view that somehow the existing legislation provides sufficient support for the pirating that's going on.

I want that on the record, because Mr. Geist has taken it upon himself to attach my name to that position. I just want it clear for the record that isoHunt itself initiated this legal action, not the other way around, as was represented rather inaccurately by Mr. Geist.

Thank you.

[The Chair, Conservative, Gord Brown]

Thank you, Mr. McTeague.

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

I have a point of order.

[The Chair, Conservative, Gord Brown]

Mr. Angus has a point of order.

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

My honourable cousin is referring to a question I asked, and I think he's using his platform to grandstand. I asked a question based on a lawsuit that CRIA had initiated. I asked whether the witnesses had looked at a lawsuit. It was nothing to do with being false and misleading, but with whether they had looked at a lawsuit. It was a very straight-up question.

If he wants to fight with Michael Geist, he should go out and fight with him in the media, not use our—

[The Chair, Conservative, Gord Brown]

Mr. Angus, I think that in both cases this is more of a point of debate than a point of order.

I will move to the witnesses. There was some miscommunication, and I'm going to ask for unanimous consent that we add one group to the list--the Association des producteurs de films et de télévision du Québec.

[Some hon. members]

Agreed.

[The Chair, Conservative, Gord Brown]

Okay.

Go ahead, Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chair.

I would wholeheartedly support that motion. I would also ask that members consider extending the committee meeting by 15 minutes to allow for questions until 1:15. There will be no votes or anything like that; it's just to allow for a good exchange. We have a number of witnesses here, and I don't think one round of questioning is going to be sufficient.

[The Chair, Conservative, Gord Brown]

Mr. Del Mastro is asking for unanimous consent to extend the meeting by 15 minutes.

Is there consent?

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

Mr. Chairman, I would like to speak to this point.

During the first round, which lasted an hour, we heard from two witnesses. In the second round, we have four witnesses. The committee previously decided that we would have six per meeting, that is two panels of three witnesses, not one panel of two and another of four.

By proceeding in this manner, we're giving unequal chances to the people who've been invited, who have prepared their presentations, who are expecting a certain number of questions in order to express their views in detail. We are forced to share our attention among four people representing four organizations whose briefs are all different.

I'm going to allow the situation this time, but I don't want this to occur again. I would like our meetings to be more balanced.

Furthermore, I don't know whether Mr. Del Mastro put this on his agenda, but a press conference is scheduled for 1:00 p.m. concerning publication of the report of the Standing Committee on Canadian Heritage.

[The Chair, Conservative, Gord Brown]

Thank you, Madame Lavallée.

Go ahead, Mr. Angus.

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

Yes, Mr. Chair—who has the long-suffering position of dealing with this almost on a daily basis—I have no problems extending the meeting. I have to leave just before one o'clock, as some of my colleagues do. We are from the heritage committee and we have a press conference.

I think we have a number of witnesses and I think it's fair to hear our witnesses. If there was a miscommunication and the witness list was mixed up, I have no problem adding the witnesses. On any day that happens, I don't mind giving them the time. People come, and they should be heard. I will not be here for a second round of questioning, but I don't have a problem if my colleagues are.

I think we should get on with the work.

[The Chair, Conservative, Gord Brown]

Okay. Is there unanimous consent to withdraw the motion and to end at one o'clock?

All right. We're cutting into the time for the witnesses. I'm sorry.

We'll now to move to our witnesses. We have, from the l'Association des réalisateurs et réalisatrices du Québec, François Côté and Caroline Fortier; and from the Documentary Organization of Canada, Lisa Fitzgibbons and Cameron McMaster.

From the Writers Guild of Canada, we have Maureen Parker and Jill Golick; and from our additional group, we have Brigitte Doucet and Patrick Boie.

We will start with Caroline Fortier.

You have five minutes.

[Caroline Fortier, Executive Director, Association des réalisateurs et réalisatrices du Québec]

Mr. Chairman, members of the committee, good morning. My name is Caroline Fortier, and I'm the Executive Director of the Association des réalisateurs et réalisatrices du Québec, which I'll describe to you shortly. I'd like to thank you for this opportunity to speak to you today. I hope we'll have enough time.

In fact, I'd simply like to skip immediately to Mr. Côté's presentation; so I'll simply talk about the ARRQ. It represents over 650 directors working mainly in French in Quebec, and defend their professional, economic, cultural, social and moral rights and interests. Its mandate is to represent directors at all times and in all cases.

I'll hand over immediately to Mr. Côté.

[François Côté, President, Association des réalisateurs et réalisatrices du Québec]

Mr. Chair, members of Parliament, allow me to begin by pointing out that Denis Villeneuve, whose name has been frequently mentioned this morning, the director of the film Incendies, who was recently nominated for an Oscar, is an active member of our association, as are Denys Arcand, Xavier Dolan and many others.

So you will no doubt understand our pressing need to defend directors' copyright. You no doubt also understand why we have joined creators across Canada in signing statements denouncing several aspects of Bill C-32.

We are concerned about the impact Bill C-32 would have on the creation of films and audiovisual content in Canada. The combined effect of many exemptions for royalty payments, unclear criteria and the wholly inadequate means proposed to protect content will be to devalue the work of Canadian creators, including directors, across the production line. We've heard that this morning.

We can hardly be surprised if creators eventually seek alternative ways, or countries, to make a living. In attempting to expand free access to cultural content, this bill in fact threatens consumer access to Canadian works that reflect our identity and culture, quite simply because such works may no longer exist. The figures cited to this committee this morning illustrate that point.

It is tempting to draw a parallel between what could happen if this bill were passed and what happened to our American neighbours during the subprime mortgage crisis, which resulted in a global financial meltdown that continues to affect us today.

Content is to the audiovisual and communications industry what loans are to banks. It's our core business. When mortgage loans lost their value, the entire banking system was in trouble. If we devalue Canadian content, the entire Canadian audiovisual and communications industry will be under threat.

But the comparison ends there, since, while loans are a basic, essential and irreplaceable part of the world banking system, Canadian content is just one product among others, one that broadcasters, access providers and content integrators, particularly if they're not Canadian, can easily forego. There is no shortage of international content these parties can offer in return for subscription fees which they can pocket in full.

After spending billions of tax dollars to support Canadian culture and create a homegrown audiovisual industry, it would be sadly ironic if the federal government were to destroy it all by allowing creators to go hungry. We can only imagine what the rest of the world would think.

To return to Denis Villeneuve for a moment, let me ask you this: how can we be so proud of his remarkable achievement and yet, at the same time, be willing to undermine the ability of Canadian creators to continue producing such works?

The Standing Committee on Canadian Heritage adopted a motion extending congratulations to Denis Villeneuve for the Oscar nomination of Incendies. But did you know that Denis Villeneuve, like Denys Arcand and Xavier Dolan, is not recognized by the Canadian Copyright Act as the author of his film? Even though he's been nominated for an Oscar in the Best Foreign Language Film category. The entire world recognizes Denis Villeneuve as the author of Incendies, but the law of his own country doesn't. That's why we feel it's entirely legitimate, logical and urgent that the Copyright Act be reworded to include and name the director as the author of the audiovisual work, just like the screenwriter.

The Association des réalisateurs et réalisatrices du Québec would like to cooperate fully in updating the Copyright Act, and will do so in the firm belief that individuals create content and that those individuals should reap the economic rewards of their work.

Thank you for your time and attention.

[The Chair, Conservative, Gord Brown]

Merci.

We'll go to the Documentary Organization of Canada for five minutes.

[Lisa Fitzgibbons, Executive Director, Documentary Organization of Canada]

Mr. Chairman and members of the committee, thank you very much for the opportunity of presenting our views today. My name is Lisa Fitzgibbons. I am the Executive Director of the Documentary Organization of Canada, or DOC, and with me is my colleague Cameron McMaster.

DOC speaks on behalf of 800 members, who are directors, producers and craftspeople in the documentary community across Canada.

Documentarians create works that receive protection from copyright, but as creators they also frequently need to access and use the works of others. Documentarians routinely use clips, archives, photos, etc. to create their works and tell stories of historical or social significance. Under certain conditions, a documentary filmmaker may claim legal fair dealing in order to access and quote copyrighted material without a requirement for permission or licence payment. Filmmakers do so with great care, because as users and owners of copyrighted material themselves they understand that fair dealing is a two-way street: the works they produce may also be used in a similar fashion by others.

Many stakeholders argue that fair dealing can be abused by copyright users to avoid paying for use of materials. DOC does not condone this practice. Fair dealing is not free dealing. In documentary production, the defence should be applied in legitimate circumstances for the purposes of comment, criticism, and review.

The intersection of fair dealing and documentary production has been at the heart of DOC's advocacy efforts for many years, and this is why we are particularly concerned about the bill's provisions on digital locks. DOC supports digital locks as a form of protecting one's expression from infringement, but the current digital lock provisions proposed in Bill C-32 do not provide exceptions for anti-circumvention measures for the purposes of fair dealing.

Visual materials are the raw matter with which documentary filmmakers work. Having access to various sources, analog and digital, is essential to the craft of the documentary. As technology advances, we encode our history on different media. History is being digitized. The ubiquity of digital media may lead to more digital locks, but how can we have free access to this history if it is unavailable because of a digital lock? Consider the impact this would have on our ability, as Canadians, to tell our own stories.

The introduction of digital locks without the proper exceptions for fair dealing, especially for the purpose of documentary filmmaking, would hinder documentary filmmakers' ability to carry out their trade. If documentary filmmakers are kept from practising their craft because of digital locks, they are being denied their freedom of speech and creative expression. Fair dealing is legal. Criminalizing either the tools or the creation and sale of tools to exercise fair dealing is an inherent contradiction in copyright law.

In other jurisdictions, digital locks have been deemed to hamper creative expression and free speech. Consider that in July 2010, the U.S. Copyright Office reformed the DMCA to allow for documentary filmmakers to break digital locks if the purpose and use is fair. As the Government of Canada updates its copyright legislation, it should start on the right foot by creating exceptions for non-infringing purposes in a meaningful and effective manner.

Now we have just a few words about the educational market. Today we'd like to bring the perspective of the educational video community in regard to Bill C-32—distributors, content producers, and producers who self-distribute their work. Documentarians license their materials to many markets, including theatrical, television, digital, and educational ones. The niche subject matter of documentaries makes them perfect material to be used in the classroom. With documentaries, professors and teachers have an affordable and accessible way of enhancing their teaching.

Students have access to Canadian stories and Canadian history. Up until now, Canadian students, educational institutions, educational video distributors, and documentary producers have enjoyed a fruitful relationship. Documentarians want to challenge, criticize, and, most importantly, educate Canadians about the most topical and pertinent issues of the day. Without proper compensation for the use of their works in the classroom, documentarians will be unable to create content for use in this setting.

Furthermore, the distributors that facilitate access to these materials will disappear. If the distributors disappear, where will the educational institutions turn to find high-quality topical educational video for use in their curricula? Will they have to turn to a larger resource, namely American distributors? If that were to be the case, the result would be little or no Canadian video content in the classrooms.

We fear that the combined effect of the proposed reforms to the educational institutions and the fair dealing sections of Bill C-32 will result in less Canadian video content being available in Canadian classrooms.

Thank you.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move to the Writers Guild of Canada.

[Maureen Parker, Executive Director, Writers Guild of Canada]

Good morning, members of the committee. My name is Maureen Parker. I'm the executive director of the Writers Guild of Canada. Also with me today is my president, Jill Golick, a digital creator. Thank you for inviting us.

The Writers Guild is a national association representing more than 2,000 professional screenwriters working in English language film, television, radio, and digital production. Screenwriters in Canada have a vested interest in copyright. Unlike their American counterparts, Canadian screenwriters retain copyright in their work and only license the right to produce. Their ability to make a living from their work is based on upfront fees, participation in profits, and secondary use royalties generated by copyright in other jurisdictions.

We agree that Canada's copyright law needs modernizing and we have been consistent advocates for copyright reform over the years.

Digital technologies have made it easy for people to copy and share creators' works. It's not just about music any more. The average consumer's iPod, computer, and tablet are loaded with film and television programming. Audiences download shows to watch and store for repeat viewing, and screenwriters want that. They want their work to be seen by the widest possible audience, but it's important to remember that copies have value, and screenwriters must be paid that value.

Our biggest concern with Bill C-32 is the introduction of proposed section 29.22, which expands the concept of private copying to all works, but without remuneration. Proposed section 29.22 expands private copying from personal use of the person making the copy to private purposes, which allows an individual to make copies to share with an unspecified number of people. This clearly undermines existing sales of copyrighted works. Why would your friends and family buy a movie or a TV boxed set when you can copy the version you bought and share it with them? Proposed section 29.22 deals a potentially crushing blow to the DVD market. Creators need a modern copyright act that protects, rather than undermines, their revenue streams.

Our preference is the deletion of proposed section 29.22. This would allow markets for the copies to develop. Alternatively, the legislation should limit proposed section 29.22 to music only, so that it balances and works in tandem with the current private copying regime, which is related to music only. This would also require a return to the concept of personal use, the language existing in the current act. Amending the bill in either of these directions would allow collective licensing for private copying of non-music works to develop outside the Copyright Act or in future amendments. We will not be able to do either if these rights are given away for free now.