Evidence of meeting #17 for Bill C-32 (40th Parliament, 3rd Session) in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.
A recording is available from Parliament.
11:05 a.m.
Conservative
The Acting Chair Conservative Maxime Bernier
We will now begin the 17th meeting of the Legislative Committee on Bill C-32. Two witnesses are here to help as we continue studying this bill.
Before we hear from the witnesses, I will give the floor to Mrs. Lavallée.
11:05 a.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Thank you very much, Mr. Chair.
I would like to talk to you about the list of witnesses.
This morning we have the honour and pleasure of receiving two key witnesses from 11:00 a.m. to noon. However, last week, at the last meeting, there were six people. At the last minute, the chair decided not to receive another person. There would have been seven witnesses and that would have made no sense.
There are representatives from organizations who are representing tens of thousands of artists and who have concerns about Bill C-32. Organizations are complaining that they have not been invited. This morning, we would have had time to hear from other witnesses, because, in the second part of the meeting, we just have to look at a notice of motion and that might only take five or ten minutes. Yet, this morning, we are only going to hear from two witnesses.
A number of organizations have contacted me to let me know that they have not been called to appear. When they call, they are being told that they are not on the list yet and that they might never be.
Mr. Chair, one of those organizations is the Union des artistes. The Union des artistes (UDA) is one of the organizations representing Quebec's leading artists. It is chaired by Raymond Legault and it has 11,000 members.
Its representatives want to testify together with Artisti, which protects the rights of artists and has 2,000 members. UDA has initially asked for neighbouring rights and is also the founder of the current private copy system.
It is completely unfair that the Union des artistes is not on the priority list to be invited to participate in our work and that we cast them aside by saying that we don't even know if they are going to be invited to testify. It is simply unfair, Mr. Chair.
I would like us to rethink the witness list together and find a way to invite them. That was very clear when we sat around this table and made the decision. We were supposed to have two hours with two panels. In each panel, there were supposed to be three witnesses or three representatives from various groups.
That's not what we have here. When the representatives are against Bill C-32, we fill the room with six or seven different groups at the same time. When they are in favour of it, they are all alone. They are asked to come back or there aren't very many of them and they have all the time they need to express their ideas.
11:05 a.m.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
Unfortunately, we have to deal with the whole issue here because there is no steering committee.
In response to Mrs. Lavallée's comments, I agree that it would be better to structure the meetings so that we hear from three people per hour, as was decided by the committee.
There are some major organizations, and Mrs. Lavallée has referred to them. The Union des artistes and Artisti are crucial for our work. They were on our priority witness list. We should have heard from the representatives of these organizations for some time now. We want to make sure that we will hear from them fairly soon because they are absolutely essential to the debate on Bill C-32.
Mr. Chair, as to the other point, I am respectfully addressing the clerk. We receive the documents much too late. I wonder why, since our witness lists have been ready for some time. We are very familiar with the issue. There's only one, and that's Bill C-32. It would be nice if we could receive the documents in advance.
11:05 a.m.
Conservative
The Acting Chair Conservative Maxime Bernier
Great, thank you.
Before giving the floor to Mr. Del Mastro, I just want to provide the committee members with some information about the two previous comments.
The clerk has informed me that the Union des artistes should be here Thursday. He has been having trouble getting some of the people to appear. So the committee definitely wants to have the maximum of three witnesses per hour of meeting. The clerk and chair have made a note of that.
Depending on the people's availability, we are doing our best. This Thursday, we will for sure have representatives from the Union des artistes and other people.
Before proceeding and turning the floor over to Mr. Del Mastro, I just want the committee to take note of a letter I received this morning from the chair of the committee, Gordon Brown. I will read you a passage from Mr. Brown’s letter. He says the following:
Due to the passing of my mother this afternoon, please be advised that I will not be attending the meetings scheduled for March 8, 2011 and March 10, 2011. I hereby appoint the Hon. Maxime Bernier to act as Chair of the committee for these meetings.
On behalf of the committee, we are sending Mr. Brown our best wishes and our condolences during these trying times for him and his family. His mother was elderly. But I still hope everything will go as well as it can go for him.
I will now give the floor to Mr. Del Mastro.
11:10 a.m.
Conservative
Dean Del Mastro Conservative Peterborough, ON
Thank you, Mr. Chair. Certainly we'd echo your comments on that.
I would just point out to committee members that we have committee business scheduled in the second hour of the meeting, so certainly we could have these discussions then. I think a lot of this is simply a symptom of the committee's not meeting often enough, and many of the witnesses are also trying to game the system a bit. They all want to be last. That's why it's difficult for the clerk to schedule meetings.
So for what it's worth, I would just propose that we move to committee business. We can come back to these discussions once we've heard from the witnesses who are here today.
11:10 a.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I am very pleased to learn that UDA representatives will be here on Thursday. But I would like to tell you that the chair was not aware of that on Monday morning. I’m not sure he is any more aware of it now. Otherwise, I think he would have mentioned it to me.
11:10 a.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I am obviously joining you in offering my condolences to our chair. Losing one’s mother is never easy. I would like you to send him a heartfelt message so that he knows that our most positive thoughts are with him in this great loss.
11:10 a.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Thank you, Mr. Chair.
I'll be quick.
We definitely want our condolences offered. Mr. Brown has been an excellent and very reasonable chair on our committee and his family of course should come before any of our business at this time.
That being said, I believe that our clerks are working full out. They've received the instructions of the committee. If there's a meeting where we don't have as many people for whatever reason, I'm not second-guessing their motives. I feel there's been a large witness list, and there are many competing interests, so I'm willing to just carry on with this meeting and get down to the business at hand.
11:10 a.m.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
I would just like to extend my condolences to Mr. Brown and send him my best wishes.
11:10 a.m.
Conservative
The Acting Chair Conservative Maxime Bernier
Thank you, Mr. Rodriguez.
We are now going to hear from our two witnesses. As Mr. Del Mastro said, we are going to deal with the committee business and Mrs. Lavallée's motion during the second hour.
I will now turn the floor over to our two witnesses, David Fewer, Director at Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, and Russell McOrmond, as an individual.
We will start with Mr. Fewer for five minutes and follow with Mr. McOrmond.
You have the floor, Mr. Fewer.
11:10 a.m.
David Fewer Director, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
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.
11:20 a.m.
Director, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
I thank you for inviting me here today, and I would welcome your questions on any of the topics I've discussed, from educational fair dealing to anti-circumvention.
Thank you.
11:20 a.m.
Conservative
The Acting Chair Conservative Maxime Bernier
Merci, monsieur Fewer.
I will give the floor to Mr. McOrmond for five minutes.
11:20 a.m.
Russell McOrmond As an Individual
First, I offer my condolences to Gordon Brown.
If you have my brief, you actually have a partial transcript of what I'm about to say.
My name is Russell McOrmond. I'm the policy coordinator for CLUE, the Canadian Association for Open Source. I'm the co-coordinator of an organization called “Getting Open Source Logic INto Governments”. I'm the host for Digital Copyright Canada, which uses the domain name billc32.ca. I'm an independent software author and a technical consultant.
I coordinate a few petitions that have been tabled in Parliament. There's the petition for users' rights, which has had nearly 3,000 signatures tabled, and a petition for information technology property rights, which has had nearly 400 signatures tabled.
But I am here today as an individual. I do not envy you the job that is in front of you. Copyright is as complex as tax law and, as is the case in tax law, there can be both too little and too much. I have often said that copyright is to creativity as water is to humans: too little and you get dehydrated and die, too much and you drown and die.
A bill dedicated to the ratification of the 1996 WIPO treaties would have been complicated enough. The bill before you is an omnibus bill that includes many unrelated topics and it is unlikely you will have the time to adequately study the impacts of all of these topics.
Even though the bill has been passed at second reading, topics that are outside the bill have continued to be included in presentations and questions. I have created a set of frequently asked questions and answers at billc32.ca/FAQ. While I offer commentary and alternatives to many of the policy positions within the bill as well as topics outside the bill, today I must focus on my primary concern, which is information technology property rights. I have some props that I use. I've been doing this presentation for a few years.
I'm holding up four things. In one hand, I'm holding a DVD, which represents two things: some copyrighted content and the tangible medium it is stored on. These two things can have two different owners, and the rights of each should be respected. In my other hand, I hold some digital technology. It's my Google Nexus One phone, which represents hardware and software. Again, these can have two different owners: the copyright holder of the software and the owner of the information technology.
While you have been told that technical measures are entirely a matter of copyrighted content, real-world technology works quite differently. It is not possible to understand the impact of Bill C-32 in real-world scenarios without a better understanding of that technology.
On the content side, it is possible to encrypt content such that it can be accessed only if you have the right keys. I have here one example of an access control.
I discuss in my Bill C-32 FAQ how access is a novel concept in copyright, and how protecting access and access controls effectively creates an opt-out of the rest of the Copyright Act for those who make use of access controls. I also discuss how legal protection for access controls in copyright law can be abused to circumvent the traditional contours of contract, e-commerce, privacy, trade, and consumer protection and property law.
Content cannot itself make decisions such as whether it can be copied or how many times, or any of the other things that copyright holders might like to encode in their licence agreements. Content alone cannot make decisions any more than a paperback book is capable of reading itself out loud. Any decisions that are made are encoded in software that runs on computing hardware. What are often called “use controls” in the context of copyright are nearly always software running on computing hardware.
It is critical, therefore, to think not only about the interests of the copyright holders of content, but also about the interests of software authors and the owners of information technology.
I am a software author. Before copyright can offer me anything, I need to ensure that the owners of technology have the right to make their own software choices. If they are not able to make their own software choices, how can they possibly choose my software? This means that IT property rights, including the rights of owners to make their own software choices, are far more important to software authors than copyright.
Let's talk about some real-world technology examples. This DVD here has an access control applied to it--notice that I said “access control”--called “the DVD content scrambling system”. The keys for this type of digital lock are managed by the DVD Copy Control Association. It is important not to let the title of the organization confuse you into thinking that this is a copy-control or a use-control technical measure, as it is not. The DVD Copy Control Association is an association made up of major studios, major hardware manufacturers, and major software vendors. This organization negotiates what features will be allowed in hardware and software that will be given keys capable of unlocking the access control applied to the content. It is the contractual relationship between these major vendors--not copyright--that this access control is protecting.
If you are a competitor of the members of the DVD CCA, or for any reason cannot sign on to their contractual obligations, you will not receive the keys to encode your own content or decode content. It should be reviewed by the Competition Bureau to determine whether such contractual obligations should be allowed. Tying the ability to access content encoded with DVD CCA keys requiring a DVD CCA-approved access device seems like a textbook example of “tied selling” under section 77 of the Competition Act.
Any time you hear the word “lock”, you must always ask who manages the keys. It is not the owner that is in control but the entity who manages the keys. In most real-world examples of technical measures, copyright holders do not control the keys to locked content. They are sometimes but not always given the choice about whether it is locked or not, but not much control beyond that. In the case of locks on hardware and software, the keys are specifically denied to the owners of the hardware. The purpose of the lock is to lock the owner out of what they own.
For no other type of property would this be considered. We would never legally protect non-owner locks to all guns in a country where many are uncomfortable with the mere registration of long guns. We would never legally protect non-owner locks on our homes, alleging it was necessary to protect the insurance industry from fraud. We would never legally protect non-owner locks on our cars, allegedly to ensure that automobiles could never be used as a getaway vehicle.
11:25 a.m.
Conservative
The Acting Chair Conservative Maxime Bernier
Thank you very much, Mr. McOrmond.
Now I will give the floor to Mr. Garneau.
You have seven minutes.
11:25 a.m.
Liberal
Marc Garneau Liberal Westmount—Ville-Marie, QC
Thank you, Mr. Chair.
I'd like to begin by thanking both of the individuals who have come here today.
I'd like to start with Mr. Fewer.
First of all, I was certainly interested in hearing your views on the circumvention for non-infringing purposes of TPMs. That's a point of view that I share.
I would like to talk about a few other things that you didn't have a chance to talk about. You alluded to statutory damages, but I'd like to know what your opinion is of the statutory damages proposed in Bill C-32 as it is currently written.