Bill C-32 (40th Parliament, 3rd Session) Committee on March 1st, 2011

[Grant Dexter, President, MapleMusic]

Thank you for giving me the opportunity to address the committee today.

I'll start by stating that we absolutely need this bill. I come here as a constituent of the independent music community, speaking on behalf of Canadian-owned companies involved in every aspect of music, sound recording, and music-related industries. I can tell you that without a doubt we have been severely impacted by piracy. That is why copyright reform is crucial.

However, Bill C-32 is not without its weaknesses. As you have heard from many witnesses, the technical drafting does not, in some cases, meet what it sets out to do. As an example, Minister Clement has said time and time again that Bill C-32 targets the “wealth destroyers”. But the way it's written, the isoHunts of this world will not be effectively brought to justice.

In many cases, the language of the bill is simply too broad to effectively meet its objectives. For instance, the enabling provisions--the single most important aspect of the bill to target the wealth destroyers--are written in a way that will surely allow isoHunt off the hook. I cannot imagine that is what the minister intended.

You have a one-page summary of our key recommendations, but I'd like to highlight a few.

Bill C-32 needs to separate the bad guys from the good guys, providing the good guys with safe harbour but not giving the bad guys refuge. The definition of these enablers must be tightened up so we can catch them, and the penalties must be high enough to deter them.

The Liberals have stated that the statutory damages need to be commensurate with the severity of the infringement. Currently they provide little or no deterrent to theft.

The “making available right” contains a fatal flaw that would require rights holders to file a tariff or get permission from the minister to exercise their rights. This cannot have been the intention. An earlier version of the copyright reform did not contain this flaw; therefore, it is easily fixed.

The user-generated content provision is written so broadly that individuals could post the entire MapleMusic catalogue of music and have a simple top and tail to qualify: MapleMusic is the best...all of our content...isn't this great? This law would allow them to do that.

The private copying exception is also very broad. While we do not object to consumers making copies of legally purchased music to their hard drive or iPods, the minister cannot have intended the iPod to become a filling station for the neighbourhood. This must be limited to reproduction of legal copies within their own households.

Finally, the same limit to legally purchased copies in the confines of the household can be said for time shifting.

The best outcome we could hope for is the restoration of a legitimate marketplace for creative products. With minor changes to avoid unintended consequences, Bill C-32 provides the copyright reform that is so desperately needed by the independent music sector in Canada.

Thank you.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move to Loreena McKennitt, from Quinlan Road Limited.

[Loreena McKennitt, President, Quinlan Road Limited]

Thank you for the opportunity to meet with you this morning.

I would like to restrict my comments to four points.

First, I would like to commend this government for the bill they have presented. I believe with few exceptions they have identified and achieved the main principle of this whole debate: the need to protect the content creators and copyright holders. The job to be done now is to finesse the language of what is intended, knowing that it can be tweaked through the course of time, and to get this bill passed without further delay. The situation at the coal face is dire.

Second, I am deeply disappointed with those vocal few who continue to frame this discussion as one that only affects major labels and who are driven by interests from across the border. As an independent artist with my own label who has worked with a vast ecosystem of Canadian suppliers for over 25 years, I can attest that this is not the case.

I would suggest that the true commercial interests behind the scenes who are playing a detrimental role in this issue are largely the enablers. They would include the BitTorrents and isoHunts, the new global media entities such as YouTube, and even the constituency of ISPs that pretend to be neutral in this matter.

I believe the ISPs and the website owners should most certainly play a significant role in the management of that content that passes through their hands and be accountable for that. This must be true not only for copyright purposes but surely for other matters such as pornography, privacy, and fraud. After all, it is these companies who are making their profits off the eyeballs that are driven to their site to access illegal content.

Third, due to the urgency of this bill, I would urge this committee not to get diverted on the matter of levies, which is not even in the bill. I have taken account of what this means in real terms to me, and it represents less than 1% of my income. For most other artists, this would hardly come close to a meaningful income stream, and in no way should a levy be considered a substitute for an artist having the tools to produce income from his or her work. Rather, what is important, especially for those starting out, is that their works are properly protected and not pirated and exempted at every corner.

Fourth, it is important to understand that everything can be accomplished within the framework of permissions. One need not tie oneself in knots trying to carve out exemptions for this and that. The default of all positions should be that the content creators' rights over the control and intention for their work should be fundamental, and if there are those who for commercial, charitable, or educational purposes wish to use that music, they can simply request that use. My small label, which prides itself in customer service, successfully issues hundreds of permissions each year. This courteous and rightful practice is already in motion, and simply needs clarification in legislation.

Most important, it is essential that some sort of protection be achieved immediately and that any “made in Canada” solution be harmonized with other international territories and reflect our commitments. The creative communities around the world, not only in Canada, are relying upon us to finally do our part.

[The Chair, Conservative, Gord Brown]

We are sitting at about 12 minutes. We have agreed that this group would get 15 minutes. There are about three minutes remaining if any of the witnesses want to add a little more.

No? Okay. Thank you very much.

We'll move to the first and only round of questioning.

We'll go to Mr. McTeague, for seven minutes.

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

Chair, do I get an extra three minutes?

[Voices]

Oh, oh!

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

Witnesses, thank you for being here and for your very helpful commentary at a very critical juncture. The timing, I suspect, could not be better.

I have open-ended questions for all of you here, so whoever should want to answer should just come forward.

Bill C-32 would place a cap of $5,000 on statutory damages for all claims of rights holders where the infringement is deemed to be for non-commercial purposes. In your opinion, what effect would this change have on the actions of members of the public? Some of you have opined on this. Do you think this section actually needs amendment? If so, do you want to specify that?

Mr. Ellson.

[John-Paul Ellson]

Prior to the music business, I spent 20 years as a civil litigation lawyer, so these damages are quite interesting to me.

I quit private practice law about three years ago, but when somebody came into my office wanting to sue somebody, on average I would quote between $30,000 and $45,000 to do a two-day Court of Queen's Bench trial of 12 to 18 months. I'd ask for $5,000 up front before I did anything.

To lower the statutory damages down to $5,000.... In effect, what is going to happen is you might as well do away with them entirely. The public or whoever--it could be for-profit as well—will say, “Nobody's going to sue us because it's not worth it. We'll just keep doing it.” You are basically giving them a blank cheque to continue doing it.

[Loreena McKennitt]

My feeling is that once a bill is established and the public is educated in what it's set out to do, most Canadians seek to be law-abiding. I think that, as my colleagues suggest, one must set out penalties in such a way so that those who are driving for commercial interests are not able to do that with impunity.

[Graham Henderson]

[Inaudible--Editor]...suggestion. If the goal is to provide flexibility here to judges to take private purposes into account, I think that's what the concern is. A good way to do this would be to leave the statutory damages provision exactly as it is, but to make infringement for private purposes a special case under proposed subsection 38.1(3), which would let judges reduce the damages to zero if it was appropriate.

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

You've submitted that as a recommendation, Mr. Henderson?

[Graham Henderson]

Yes.

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

For my question number two--I'm going to have to go very rapidly here--there are some who would argue that in today's digital environment, Internet service providers must play a role in helping them to stem copyright infringement. As you know, Bill C-32 implements a notice and notice approach or regime, if you will. In your view, is this in fact sufficient? Is it enough? Do you think ISPs and search engines are in fact getting a free ride under the bill?

[Grant Dexter]

We don't feel that the notice and notice has any teeth to it because, as copyright holders, we would go to the ISPs, and then they would inform whoever's violating. That's not strong enough.

Again, as Graham said and Loreena said, we don't want to sue our own customers or go after the people that buy our music. For the folks who are commercially stealing our copyrights, we need stronger weapons than a notice and notice. That's not going to do anything. It's not going to change anything for us.

[Loreena McKennitt]

I think also it must be borne in mind that it takes time to do this process and that with the speed that digital information travels now, you can incur an incredible amount of damage without having a swifter and more severe remedy. I think it also goes back to the default that the copyright holders should have their rights deferred to.

[Graham Henderson]

At minimum, ISPs should be required to implement a policy that would deal with repeat infringers.

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

Chair, how much time do I have?

[The Chair, Conservative, Gord Brown]

Three minutes.

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

Well, I have two more. I think we're just under the wire, so I'll try to do this as best as I can.

We've been told time and time again on this committee that the UGC provision, the user generated content exception, is open-ended, and that it might be subject or might have unintended consequences. From your perspective, what can be done in this legislation to improve this legislation?

[John-Paul Ellson]

I do want to address, on that issue, something that, from what I've read, may not have been brought to your attention.

Most of the discussion around this is on the financial consequences of this. But for our members, there is a much more important point, and that is the moral rights issue, the right of integrity of the work. Yes, there are financial consequences, but what if an artist writes a wonderful song about their cat, and all of a sudden somebody takes a film of a cat being killed or tortured or something and uses that song and puts it up there? That's the right of integrity.

For most of my members, they won't ever have a hit song. They play wedding socials. They play in bars on Friday nights. But they write songs, and it's the right of integrity; keep that in mind on this issue.

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

How do you write that in?

[John-Paul Ellson]

It's in there now. It's moral rights. You've got moral rights in the current act.

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

All right.

I have a final question in the minute or so that I have left here. There are exceptions that permit the circumvention of technical protection measures, the TPMs, and there are flexible means of adding....

In your view, is there any way in which we can add a more flexible approach to this legislation if it is required? It's obviously a serious flashpoint for a number of us, but it does require at least some dexterity on your behalf to try to provide us and cobble together what might be an alternative or a compromise that might make all satisfied, if such a thing can ever happen.

[Graham Henderson]

Perhaps I could just quickly answer.

I think often it is forgotten that there are a slew of exceptions already built into the legislation. Also lost in the discussion is the fact that there is a power to make regulations. If, down the road, someone has an issue relating to a TPM, there's nothing to stop them under the existing.... You could tighten it up if you wanted, but it's there. Appeal to the Governor in Council, make your case, and then, if there's merit to it, a new exception could be created.

I think that's there, and I think a lot of exceptions have already been built in that cater to some of the issues that have come before us.

[The Chair, Conservative, Gord Brown]

Okay, we'll wrap up.

Madame Lavallée, sept minutes.