Merci beaucoup.
CIPPIC is the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. We are a technology law clinic in the Faculty of Law, housed in the Centre for Law, Technology and Society at the University of Ottawa. Our mandate is to advocate for balance in policy- and law-making processes and to provide legal assistance to under-represented organizations and individuals on matters arising at the intersection of law and technology.
CIPPIC has participated in policy debates around copyright since our founding in 2003, with a view towards ensuring Canadian copyright law maintains a balance among the competing interests of authors, owners, distributors, consumers, downstream creators, and innovators.
Thank you very much for inviting me here.
In practice, our advocacy has involved us in representing consumer interests and also creator interests on various files. For example, some of our current work includes acting with the Documentary Organization of Canada, the documentary filmmakers, in assisting them in preparing guidelines for working with fair dealing. We work with Canadian independent authors on the Google books settlement, which is a large class action that involves authors all over the world and is taking place in the United States. We are working with the Songwriters Association of Canada in supporting their efforts to get compensated for unauthorized peer-to-peer file sharing.
These efforts have provided us with I think a nuanced view about copyright. I'm hoping that view informs your deliberations.
I'd like to begin by complimenting this government on Bill C-32. This bill demonstrates to me that the government was in fact listening to all Canadians during the copyright consultations of the summer of 2009. The bill represents what in my view is a real attempt to accommodate multiple perspectives on copyright. That's not something that can be said about every copyright bill that we've seen in recent history.
I will organize my brief comments around three principles and argue that where this bill succeeds, it vindicates these principles, and where it fails, it violates them.
First, copyright ought to reflect the reality of Canadians' everyday ordinary dealings with content. Bill C-32's time-shifting, backup, and private copying exceptions respect this principle. The bill has finally legalized the VCR, something that took a very long time to do. It also has legalized the iPod and other consumer technologies.
This principle is also consistent with Bill C-32's recognition that parody, satire, and educational fair dealings--“fair” dealings, dealings that are “fair”--ought not to infringe copyright, and that user-generated content is a celebration of creativity, not a threat to it.
Where the bill of course violates this principle is in its anti-circumvention provisions, the most controversial and, in our submission, unbalanced portions of the bill. As the provisions are drafted now, many, many legal activities would become illegal merely because one has to circumvent the digital lock to do it.
This has the perverse effect of locking many creators away from the content they need to create. Consider documentary filmmakers: how do they source content behind a digital lock? News organizations: what happens to the six o'clock news in the future when more and more content goes online, goes digital, and goes behind digital locks?
Why on earth are we making the lives of these creators and these organizations more difficult? CIPPIC advocates permitting circumvention for non-infringing purposes.
The second principle is that copyright enforcement ought to be directed at actors that destroy wealth and undermine creativity, not at children, not at downstream creators and innovators, and not at public institutions like libraries, schools, archives, and museums. In short, copyright litigation should never become a business model in Canada.
Mass litigation against consumers and small businesses is an abuse of our publicly funded judicial system. These are taxpayer resources we're talking about.
Our copyright legislation ought to provide incentives to engage consumers through innovation in the marketplace, not through litigation. Accordingly, CIPPIC supports Bill C-32's reforms on statutory damages, which seek to do just that.
These reforms could go further. I don't understand why we have statutory damages that include in their target public institutions like libraries, museums, or archives. These are organizations that operate in the public interest. They ought to be free of the coercive influence of statutory damages.
Similarly, CIPPIC endorses Bill C-32's efforts to give rights holders the tools to discipline bad actors who seek to profit through active promotion of piracy. Such laws are technologically neutral and do not confuse digital infrastructure with the promotion of piracy.
Third, copyright ought to recognize the full range of creators and innovators that participate in Canada's cultural and economic life, and CIPPIC is supportive of Bill C-32's recognition of this reality.
Consider the ISP liability and search location liability provisions. The bill's treatment of these entities, for example, recognizes the value of content-neutral technology to Canadians and so provides incentives for continued investment in innovation.
The bill also offers particular expansions of creator rights that serve the public interest. For example, CIPPIC supports Bill C-32's creation of moral rights to performers.
Similarly, CIPPIC is supportive of much of the treatment given photographers under the legislation, but not all of it. One area in particular that we have a great concern around is the elimination of the commissioned photograph rule. This is a provision that hasn't received a great deal of attention before this committee, and I think it deserves some attention.
Right now, the law is that we all enjoy copyright in the photographs we commission. These are our wedding photos, our baby photos, our graduation photos, and our anniversary photos, these kinds of things. That accords with our reasonable expectations. We've hired the photographer. We've created the occasion for which the photographs are taken. Our expectation is that we'll own the photographs, and that includes the copyright in the photographs.
Under Bill C-32, unfortunately, this rule is reversed. Now, a consumer who wants to own copyright will have to negotiate for it, but unfortunately, most consumers just aren't sophisticated enough. They don't know that copyright is an issue. Their legitimate expectation, their reasonable expectation, is violated.
They don't know that it's an issue they now have to bargain for, so they won't bargain for it, and then mischief will arise. This is the single most privacy-invasive, anti-consumer portion of the bill and is one that CIPPIC would like to see addressed.