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

[Serge Cardin, Bloc, Sherbrooke, QC]

Two minutes? You are generous, Mr. Chair.

Good afternoon, gentlemen.

In your brief, you have said the following:

I have often said that copyright is to creativity like water is to humans: too little and you dehydrate and die, too much and you drown and die.

The Canadian Conference of the Arts has calculated the royalties creators would be losing under Bill C-32. The total comes out to $126 million, which is rather conservative. The creators will literally dry up. What do you think about that?

If we have enough time, could you tell us about the keys and how they could protect copyright, even though they are not owned by the authors or the copyright holders?

[Russell McOrmond]

First, I wouldn't take it as written that it's a reality. As has been said many times, fair dealings are not free dealings. In Canada we have those two steps to go through. First, does a dealing go to criteria? And then, is it fair? In the United States, they just skip straight to “is it fair?”

Because they skip straight to that, people have come to understand the fairness test more than whether it fits into some narrow criteria. I actually think it would be better for everybody concerned if we moved to a “such as” language and got the criteria out of the way so people would start to understand “is it fair?”

All this loss that's being discussed, well, none of that would be considered “fair”, so I don't actually believe the loss exists. I can't deal with a reality that I don't necessarily believe is a reality.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you very much.

I will now turn the floor over to Mr. Braid.

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

Merci, Mr. Chair.

Thank you to both of our witnesses for being here today.

We'll see how much time I have.

I'll go first directly to you, Mr. Fewer.

Perhaps through the course of our proceedings there has been some confusion, some blurring of the line, between commercial infringement and non-commercial infringement and how the bill deals with those two categories. Could you just speak to the difference between commercial and non-commercial infringement, provide some examples of each, and tell us how the bill supports these two different areas?

[David Fewer]

Yes. Ultimately, it's a distinction that would be interpreted by the courts, but I would argue that there are certain classes that clearly fall in each.

Non-commercial infringement would be the private copying that Canadians do every day with their content: making backups that right now aren't covered by exceptions under the act, and moving content off a CD onto an iPod, for example, again an activity not covered by an act. Those are all private, they're plainly non-commercial, and they also plainly don't undermine business models. In fact, because they make content more useful, they actually provide incentives to purchase the content in the first place.

The commercial-scale infringement is different: you're entering into a field of commerce and either trading on it or using content in such a way as to make money in some other peripheral way. Where the distinction gets very difficult and where we have to engage in a line-drawing exercise is that somebody might have a website that has something like Google ads, which pay a very small amount and help to cover the cost of the site, of the blog, or whatever it is. Those are the cases where I think you have to be careful about saying when something is commercial and when something is simply trying to make it more remunerative to engage in a hobby.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you very much.

You have shared some interesting and original viewpoints with us.

Thank you very much, Mr. Fewer and Mr. McOrmond.

I will suspend our work for two minutes and we'll be back for committee business.

Thank you.

[The Acting Chair, Conservative, Maxime Bernier]

We are now going to continue the work of the legislative committee on Bill C-32. We are going to look at Carole Lavallée's motion.

Mrs. Lavallée, I will give you the floor so that you can speak to the motion.

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

First and foremost, I know that it is unusual to have a motion asking that a witness come to testify. I don't intend to make this a habit. Our system is based on suggestions, so it is much more flexible and it should stay that way.

I wanted to introduce this motion because I thought that Gary Fung had been forgotten along the way. Perhaps it would be useful for us to pass a motion to show him that we really want to hear what his position is on Bill C-32. He is leading one of the main activities targeted by Bill C-32 and I would personally like to know if he is in favour of or against the bill.

In the text, I say that Mr. Fung's company is in Vancouver. He owns one of the most popular Internet sites for peer-to-peer file-sharing in Canada. In an article called “The Pirate Bay's Heir Apparent”and published on December 1, 2009 in Forbes, we can read the following: I won't deny that practically everything we index is copyrighted … however, we're merely a search provider for what's available. Everything I say about peer-to-peer file-sharing is merely my opinion. It's not something we enable. We don't enable file-sharing any more than Google enables the Internet.

I would like him to come and explain this passage from Forbes to us.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you, Mrs. Lavallée.

Monsieur Rodriguez, you have the floor.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you, Mr. Chair.

In my view, this way of doing things poses a fundamental problem. I said so to Mrs. Lavallée yesterday. We are about to set a precedent. We are running the risk of burying ourselves in motions. Each person could come up with 50 motions for 50 separate witnesses. I wouldn't like us to set this type of precedent because the committee might end up wasting a lot of hours.

The Liberal Party is not against the idea of receiving Mr. Fung, but we would rather have his name added to the list of witnesses and have him be invited to deliver his testimony. If this motion is passed, everyone will introduce theirs and I will personally introduce tons of motions. Let's keep doing what we have been doing until now.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you, Mr. Rodriguez.

Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

First of all, I want to support what Mr. Rodriguez said. I think we do also run the risk of potentially insulting some of the other witnesses who perhaps didn't have a motion to come forward to request them to appear. I think that's a more prudent approach.

I would be surprised, frankly, if this witness showed up, because I think he knows he is not going to be welcomed here with loving kindness.

[Voices]

Oh, oh!

[Dean Del Mastro, Conservative, Peterborough, ON]

I think we'd all love to take a rip at him, but I would also point out that he's currently before the courts, so I'd be very concerned about potentially harming industry, artists, and others who are currently seeking remedies before the courts from this specific individual.

I think it's a bad idea, but ultimately we are 6 to 5, so it's up to you guys.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Angus.

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

Well, I think it would be a fascinating discussion, and I would love to have him before our committee.

I am concerned, as Mr. Rodriguez said, about the precedent, because if we agree to this, then next week I might find someone from the artistic community who I think is absolutely special and bring them in, and then they would get turned down. We end up leaving the other witnesses in a position of being embarrassed or of being treated as seemingly second-class if some people are pushed by special motion to the head of the line and other people are told to wait or not heard at all, so I think we should stay the course.

It would be a fascinating discussion, and maybe at our heritage committee at one point we will invite him and follow up on this issue, but we have to stay the course on Bill C-32.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you.

Mr. McTeague.

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

You see the development of what appears to be a consensus.

I understand Mrs. Lavallée's position very well. I think it is a commendable initiative, but I also agree with the principle behind keeping the procedure the same. I was wondering whether Mrs. Lavallée would be willing to withdraw her motion if the chair now makes a statement confirming that Mr. Fung will be invited.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you.

Based on the comments made by the members of the committee, even if we don't have a vote, I see that everyone agrees with inviting Mr. Fung. Anyway, I will still turn the floor over to Mrs. Lavallée.

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

I really like Mr. McTeague's suggestion.

Mr. Chair, if you say that you are going to invite him, I could not agree more. That's not the way I suggested to go about it, but the outcome is the same.

[The Acting Chair, Conservative, Maxime Bernier]

There is a consensus among committee members to invite Mr. Fung. He will receive an official letter on the chair's behalf inviting him to appear before us.

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

Mr. Chair, could you share Mr. Fung's response to your letter with us?

[The Acting Chair, Conservative, Maxime Bernier]

Yes, we will keep you posted on Mr. Fung's reaction to our official invitation.

I would now like to check if we all agree to continue the meeting in camera so that we can see to the committee business.

[Proceedings continue in camera]