Bill C-32 (40th Parliament, 3rd Session) Committee on March 8th, 2011

[David Fewer]

I think it's a very progressive move. I assume that you're talking about the reduction of statutory damages to consumers in non-commercial instances to a cap of $5,000. I think it's good.

It does two things. First, it maintains the disincentive or the coercive threat of infringement. Five thousand dollars is a lot of money for the average Canadian family. To be hit with the threat of an infringement suit seeking $5,000 in statutory damages is a sufficient deterrent for the average Canadian, and even for the above-average Canadian. That's a lot of money.

What it also does is remove the incentive for some stakeholders to use statutory damages as a tool to go out and get coercive settlements. You go and approach somebody, saying you have 30 images on your website, and statutory damages are $20,000 per instance. Eliminating that kind of coercive effect I think is good. It removes the incentive of trollish behaviour while maintaining the deterrent effect of statutory damages on individuals.

Something that I think has been lost in the debate on statutory damages and the appropriateness of the value is the option available to copyright owners to prove damages. That's what we do in just about every other area of law. If someone has committed a wrong, you prove damages. We give a special remedy to copyright holders that they have the option of not having to prove damages and electing statutory damages. If statutory damages don't reflect real damages, they can opt to prove damages and get above $5,000.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you.

I have quite a few questions, so I'll proceed.

I believe I heard you say at one point that you felt that litigation should not be directed at children. I'm assuming you mean, by “children”, anybody under 18.

Secondly, do you not have a concern...? Children do certainly indulge in downloading copyrighted material. I don't know what the statistics are, but it's fairly common. Do we want to send out a message that, “Okay, everybody in Canada, until you turn 18, you can do whatever you want, but the moment you turn 18, you'll be subject to penalties”? Is that what you're essentially saying?

[David Fewer]

For the age limit, 18 strikes me as reasonable, though for the purposes of this brief I haven't done an inquiry into when adult capacity should kick in.

In terms of the messaging, something really perverted has happened in the copyright space over the last decade. When disruptive technology hits a business model in the copyright space, usually one of two things happen. One, the communities, the businesses, evolve. They adapt to the new technologies and find a way to monetize it, find a way to put a business model over top of it, and gain revenue. But if that can't happen or doesn't happen, what usually happens is a legislative response, where we turn copyright from an exclusive right into a remunerative right.

That's why we have the radio system we have today. Radio started as pirate radio. When radio stations first emerged, they just played whatever they wanted to. Copyright owners went after them and said, “You're infringing our copyright.”

Interestingly, the legislative response was to say that we don't want copyright owners controlling radio, so we're going to turn the exclusive right into a remunerative right. Radio stations can play what they want to play, but they have to pay a fee that is fairly arrived at through a neutral process--something set by the Copyright Board, for example. That's the system that we have here today.

We haven't done that in peer-to-peer. We haven't seen, first, innovative responses in the marketplace to the emergence of file-sharing, the emergence of digital networks generally. We're starting to, but we haven't seen it yet, particularly not in Canada. Second, we've seen incredible resistance right from the get-go to any kind of collective licensing mechanism.

I mean, we like collective licensing in Canada. I like collective licensing. As a director of CIPPIC, I'm a supporter of collective licensing. But we haven't seen that approach. We haven't seen that approach mostly because certain stakeholders have been adamantly opposed to a collective approach.

Other stakeholders, such as the Songwriters Association of Canada, have been more open-minded about this in looking for mechanisms--through legislation, through the Copyright Board, or through private ordering--to put such a scheme in place. That, I think, is the best response to this phenomenon.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you.

I have one other question, and it's to both of you.

You didn't mention anything specifically about ISP liability, or I didn't seize anything. What is your position on the notice and notice approach taken in this bill? In your opinion, is it sufficient or insufficient?

[David Fewer]

It's the right approach. It allows our networks to concentrate on being the best networks they can be, and that's what they need to concentrate on.

[Russell McOrmond]

I agree that it's the right approach. These intermediaries should not be in the position of judging whether or not something is a copyright violation. It's not a simple yes or no. Most Canadians, most ISPs, are not lawyers, and nor do all lawyers agree on what is and is not an infringement.

What is an infringement should be taken to a court. ISPs should not be in the position of trying to judge that.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I've been asking for some time whether we have statistics that describe whether or not notice and notice is working. I'm sure that information can be collected, because some ISPs do provide notice that people are infringing, and yet I have not seen any statistics that show whether or not it's an effective mechanism.

Some people would say, yes, as soon as you get that first notice, it's going to create a chill, and you're not going to do it again. Other people take a different point of view and say that informed infringers say, “Oh, I know this doesn't mean a darn thing”, and continue to do it.

Are you aware of any statistics from ISPs that say whether or not this has proven to be a good mechanism--in other words, people don't repeat once they've gotten that first notice?

[The Acting Chair, Conservative, Maxime Bernier]

Please make it short.

[David Fewer]

I don't know of any statistics, but I can give you anecdotal evidence. People come to my clinic, having received these notices, and the advice I give in the discussion we have usually results in the clients saying, “This is never happening again in our house.”

[The Acting Chair, Conservative, Maxime Bernier]

Thank you.

Thank you.

I will now turn the floor over to Mrs. Lavallée.

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

Thank you, Mr. Chair.

Mr. Fewer, if I understood correctly, you said in your presentation that consumers should become copyright owners. And Mr. McOrmond, you said in one of the documents I read that you wanted to do your share in taking all of us to the post-industrial era by rejecting the notion of intellectual property. Am I to understand that you both disagree with the idea that a work of creation belongs to its author?

[Russell McOrmond]

I actually reject the term “intellectual property”, because it causes a lot of confusion, and it's a confusion I've heard among members of Parliament. There is confusion about what is a trademark and what is copyright. The term “intellectual property” causes a fair bit of confusion. It also causes a fair bit of confusion as to the nature of the harm of infringement. I would compare infringement to such an intangible property as trespass, not theft.

So I reject the term “intellectual property”, but I strongly support copyright. I support patents. I support the consumer protection aspects of trademark law and anti-counterfeiting. It's the term “intellectual property” I reject.

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

Mr. Fewer.

[David Fewer]

I don't think you would have seen me write anywhere that I reject the term “intellectual property”. At the clinic, we're staunch supporters of an effective system of copyright and other intellectual property that works for all Canadians.

Could you repeat the first part of the question? You asked me about consumers.

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

When you presented your brief, did you say you wanted consumers to be copyright owners?

[David Fewer]

Consumers can certainly turn into creators, and today, more and more, there are new forms of creativity available to consumers. I don't think I said that consumers would become owners of intellectual property. It may have been when I was trying to explain that I understand that the community copyright has to serve is more complex than a simple creator-user polarity.

There are creators. There are users. There are copyright owners. There are distributors. There are other intermediaries. It's a very complex mechanism, and it does go full circle. Some users become creators. Some creators, such as documentary filmmakers, news organizations, and so on, are by nature users.

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

First, I think you are referring to user-generated content, which means that, under Bill C-32, consumers would be able to use artistic works without permission from and without compensation to the author. I must tell you now that, in France, SACEM, which defends the rights of songwriters and music publishers, has negotiated royalties with YouTube. It's sort of the same system you were talking about earlier.

When radio started, authors complained that their works were being used without compensation, and then radio stations ended up paying royalties. Similarly, YouTube is agreeing to pay royalties to collectives that ask them to pay, and that's great. Of course, consumers will have access, but eventually someone will have to pay. When consumers listen to the radio, they don't pay, but the radio station does. So the system is the same. We cannot give works to consumers by telling them: “You can use them without anyone paying royalties”. The system must absolutely rely on principles, such as making things available to the public—that's how it is with radio and it may also be like that with YouTube—so that someone pays the creators.

I personally think that this might be more obvious in French than in English. In English, you talk about copyright, which means the “right to copy” whereas, in French, we talk about droit des auteurs, meaning “the right of authors”. People are very jealous of Quebec's copyright system. We have a star system that works really well. We love our artists and we encourage them. It is not just a star system, but it is also an ecosystem that works very well for consumers, creators and distributors.

You mentioned the education system. In his brief, I think Mr. McOrmond compared royalties and copyright in education to government subsidies.

In Quebec, the royalties paid to authors by the education system work very well. No one has complained so far. Not only does the Minister of Education not complain, but she is criticizing Bill C-32 for trying to exempt the education sector from paying copyright. Everyone in Quebec thinks that's the wrong signal to send to young people. Young people have to be aware when they use creative works. There is no access problem in Quebec and, I would suspect, in the rest of Canada, but there is a problem with respecting artists and their work. It is about compensating them. If we want to wake up and still have artists and a vibrant, interesting and rich culture, the least we can do is pay the people who are responsible for that creativity, meaning the artists.

[The Acting Chair, Conservative, Maxime Bernier]

Within 10 seconds, do you have any comments?

[David Fewer]

I have a quick comment on the user-generated content exception.

I don't have an issue with what you said. They all seem to be good responses to the phenomenon. The major point is that you don't want to have a situation where children at home are liable for copyright infringement because they're doing a version of a favourite song and uploading it to YouTube.

If we're going to look for a compensation mechanism, let us then look for one. But the worst system would be one that says it's an infringement and that our children are copyright infringers and liable for statutory damages for that activity.

This is a good thing. We should find a way to make it happen. Bill C-32 is one way to make it happen.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you.

Mr. McOrmond, briefly.

[Russell McOrmond]

You may have misread me when I was saying a government funding program. I think institution-specific exemptions to copyright are a government funding program masquerading as copyright. I happen to believe that a copyright should work inside the classroom the same way it works outside the classroom and that there shouldn't be exceptions that are specific to institutions.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you very much.

Mr. Angus, the floor is yours.

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

Mr. Fewer, you talked about your work with documentary filmmakers. I've spoken with many documentary filmmakers who are concerned already about the inability to access material that maybe in the United States would be under public use or would be under fair use, the ability to actually sign off on so many legal requirements already existing, but they're now very concerned about the digital lock provisions because of the inability to extract works.

Do you think this will have an impact on creative ability that we see? Our documentary filmmaking community is second to none in the world, but they seem to have numerous issues with this bill.

[David Fewer]

Documentary film as a form was invented in this country, so we should pay special attention to the filmmakers' interests.

You are absolutely right: the anti-circumvention provisions in particular are a problem for documentary filmmakers. They're going to become a bigger problem as more content goes online and goes behind digital locks or other content-delivering mechanisms, which will include technological controls. So the anti-circumvention side is a problem.

The fair use or fair dealing side is an interesting challenge as well. Documentary filmmakers right now have to squeeze their dealings into one of the five currently enumerated exceptions, and it's not always easy to do. A good example would be a historical clip. It's being put in there for context and background. Is that criticism, is it review, or is it a private study? It's difficult.

I believe that documentary filmmakers were asking for fair dealing...for the categories to become illustrative as opposed to exclusive categories that qualify for the fairness analysis. Their plea went unheard. We got parody and satire, which are good as far as they go, and the educational fair dealing I think had some value as well, but documentary filmmakers' needs in this phase were ignored.

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

The premise being put forward by the government is that if you have a problem with the digital locks, go to the market. I mean...talking with young people, good luck calling Sony when you've bought a product and you can't use it. I don't know if their 1-800 number has ever...or even if they have one. So you don't really have an option.

If they don't like it, I find what young people do is just download it. They will go to a legal market, or if they're denied, they'll go to the other market. We're always using that word “balance”, but what concerns me about this bill is that they're guaranteeing consumer rights and they're guaranteeing individual rights in law, but citizens are not necessarily able to access those rights.

I know there has been some discussion about the constitutionality of these provisions. I think Professor de Beer, one of your colleagues, has written about it. Do you believe that if we legislate rights and then citizens are not able to access them that would face a constitutional court challenge?