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

[David Fewer]

I'll make three comments here.

One, on the response to go to the markets and negotiate access, you forget that copyright is about exclusivity, right? Copyright gives control and the power to say no.

Copyright has a dangerous potential for being a tool of censorship, especially when you're talking about documentary filmmakers or other news organizations, or other critical organizations that want to embrace their section 2(b) charter rights--freedom of expression--and participate in a robust way in debate about an entity, about anything, right? You've got some problems.

The second point I'll raise on the constitutionality is that I think there are two constitutional problems. One is Professor de Beer's argument that any circumvention rules are about devices. It's about property. It's about contracts at the end of the day. It's not about copyright. It's not about intellectual property. So how do you get under the appropriate federal head of power? It sounds a lot more like property and civil rights, which is a provincial sphere of authority.

Then the second argument is a charter argument, right? We don't recognize this often enough. Section 2(b) guarantees freedom of expression. Copyright attaches only to expression. The overlap is 100%, so if you don't get the balance right in federal legislation, in the Copyright Act, you have a section 2(b) problem.

If you look at what anti-circumvention rights are doing, what anti-circumvention laws are doing, and the very narrow scope for avoiding liability for circumventing and the very real probability that you won't get permission to circumvent from a rights holder in all cases, particularly in critical cases, you have a section 2(b) problem as well.

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

Mr. McOrmond, I want to ask you about the key holders and the TPMs as a business model, because we've heard many complaints out of the United States that the DMCA was not always used for copyright enforcement, that it was actually used to keep out competitors, to deny them access to new and emerging markets.

The notorious story is the automatic garage door holder and no-name products. They were sued under the U.S. DMCA. Are you concerned we're going to be in a situation where software development and other new technologies are going to be unfairly circumscribed because the digital lock provisions will be used against competition?

[Russell McOrmond]

I actually have a hard time picturing a use of these technical measures that is not anti-competitive, and I also have a hard time envisioning situations where it'll actually help a copyright holder.

In most cases with that digital lock that's put on the content, the key is held by somebody other than the copyright holder. This is a non-owner lock. So for the key that's on these devices that is authorized to access the content, again, the lock is specifically denied from the owner. We should always be asking who owns what is locked: who has the keys? If it's somebody other than the owner who has the keys, you should be wondering exactly what they are trying to pull on us.

There's something dishonest going on there, which is why I suggest taking these things into the right areas of law. For instance, if you have an access control that's protecting your electronic commerce website, well, e-commerce, first of all, is a provincial responsibility, which gets us right back into the constitutional question. But that's where that legal protection should be, in the right area of law. Copyright is not the right area of law to be protecting an e-commerce site.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you. Your time is up.

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

[Ed Fast, Conservative, Abbotsford, BC]

Thank you very much, Chair.

Thank you to our witnesses.

I'm going to direct my comments to Mr. Fewer. Thank you for coming. You've obviously given this a lot of thought in teaching at...I believe it's the University of Ottawa law school. Is that correct?

[David Fewer]

That's right.

[Ed Fast, Conservative, Abbotsford, BC]

I'd like to first of all address something that was raised by Ms. Lavallée. She didn't really give you an opportunity to comment extensively on that.

As you know, this bill moves us to legitimize more of what users do every day, whether it's time-shifting, format-shifting, mash-ups, and of course fair dealing, the education exemption. Ms. Lavallée—and I'm going to paraphrase her because I don't have the direct translation here—said that everyone agrees that it's a poor signal to send out if we expand fair dealing to include education.

There are some who have articulated that view here at committee. It has been a minority view, certainly not everyone. In fact, my impression is there has been overwhelming support for expanding fair dealing to reflect the realities of today's world—not only to reflect those realities but to ensure that Canadians have the ability to expand knowledge, to build on knowledge.

Perhaps you could comment. You spoke generally favourably of the educational exemption contained in Bill C-32. I'm assuming you do support it. Perhaps you could mention some of the benefits that we'll derive from fair dealing that includes an education exemption.

[David Fewer]

Absolutely. The educational fair dealing exception, in my view, is the single most widely misunderstood provision of the act. In my view, it does a few very important things, but they're not major things. The one thing that it doesn't do is undermine business models or undermine revenues enjoyed by authors as a result of collective licensing in the educational community.

I'm sure you've all seen the articles in the newspapers saying that educational fair dealing will permit wholesale copying of textbooks or will permit replacing textbooks with course packs, with bits of copying here and there. It won't do any of those things. And it won't do those things because they're not fair. It's not going to pass.... They're educational, absolutely. They're educational, but they're not fair. Those strategies replace a royalty-bearing thing, the textbook, which authors have come to expect getting paid for, and rightly so. Certainly we would never support any provision that sought to undermine that institution.

So then the question is, what does educational fair dealing do? In my view, it does two things that are extraordinarily important.

One, it gives teachers the confidence to bring technology into the classroom. Public educational institutions are incredibly conservative organizations and very risk averse. There is a reluctance to bring in new technologies that may incur liability. Educational fair dealing covers that. Then you do have the confidence that you can bring in video, you can bring in the Internet, you can bring in new devices, and you can bring in social networking. You can bring a lot of great things into the classroom, innovative things, things that we haven't even thought of yet, and enhance our children's educational experience. That's what a good copyright law should endorse and should support.

The second thing it does, which I think is actually even more important, is that it opens up a closed curriculum. What I mean by this is that it allows students to bring their own content into the classroom. It allows students to get up in front of the class and perhaps distribute a poem or an article they've found. It allows them to do innovative things, things they have never done before. Instead of doing an essay, they're going to do a YouTube presentation in front of the class. It allows them to be innovative and it allows them to bring content that's not on the set curriculum into the classroom.

That is so important, because that allows us to get new Canadian authors before students, rather than having the same set of novels that have been in the school for 30 years. Now we can get something in there that's brand new, that no one has seen before, that's fresh off the press, something that a student has discovered and wants to share. That's what education is about and that's why educational fair dealing is so important.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you.

I'm glad you mentioned that this bill does not undermine the business model. That is critical here. We have had some witnesses, most notably the publishers, who have said this totally undermines their business model.

But if you go to the Alberta v. Access Copyright case, which I know you're familiar with, it actually says the contrary and makes it very clear that we aren't replacing royalty-producing activities with something that's going to essentially cannibalize the profits that publishers would make.

Perhaps you could comment.

[David Fewer]

Yes. That Federal Court of Appeal case is incredible, in that the court actually looked at Bill C-32and said that the educational fair dealing amendment won't change the fairness analysis. So it won't have an impact on the business model. It won't have an impact on the need to pay royalties for those kinds of dealings. That supports my view.

The other thing that supports my view and that doesn't get a lot of attention is what happened across the border. In the United States, the fair use exception actually has within its four corners a provision that says multiple copies for classroom use can be fair use. That's the equivalent of the fair dealing provision. We don't have the multiple copies business in our educational fair dealing amendment.

But you know what? Even though the States does have the multiple copies business, universities in the States still pay royalties for casebooks. Money still comes across the border into Canada for course packs that are being copied in the United States and that include Canadian authors. If they're still paying royalties in the States with that incredibly lenient fair use provision, it's not going to happen here in Canada with a more limited educational fair dealing provision.

Regardless of that, if you go back to that first point, it's not fair. If it's not fair, it's not covered by educational fair dealing. I think that's the ultimate guarantee of the safety of educational fair dealing to authors.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you.

I am now going to give the floor to Mr. McTeague.

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

Thank you, Mr. Chair.

I would also like to express my condolences to Gordon Brown for the loss of his mother.

Mr. Fewer, do you think the law should be clearer that sites like isoHunt and The Pirate Bay are in fact illegal in Canada?

[David Fewer]

I'm not familiar enough with the specificities of those sites, the facts of what those sites do, but I would definitely say that businesses that build a business model on encouraging wealth-destroying activities and piracy should be illegal in Canada.

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

Thank you.

With respect to statutory damages, building on your response to my good colleague Mr. Garneau and others, there are some academics who have argued that the proposed $5,000 cap—and I think you referred to it as a progressive move—represents a good compromise. Others here call it a licence to steal.

I wonder if the $5,000 penalty might actually encourage pirates to steal massive quantities of content. The most they'd end up with, as far as liability is concerned, is a one-time lump-sum payment. I wonder if you'd agree that this would be a licence or an opportunity that permits them to freely engage in continuing illegal activities. From your perspective, do you not see a problem with that?

Am I over time already?

[The Acting Chair, Conservative, Maxime Bernier]

Yes, because it's going to be short.

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

Was that five minutes?

[The Acting Chair, Conservative, Maxime Bernier]

No, it's not five minutes. We have to finish at 12 o'clock. You still have a minute to ask your question. I want all members to have a second round.

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

Thank you.

I'll leave it at that, Mr. Fewer.

[David Fewer]

I have two very quick responses to that, and actually they're varieties of the same one.

I don't think consumers act that way. That's not how we think or operate in the marketplace. We don't draw our incentives based upon the remedies available to copyright holders and the Copyright Act. It's just not on the consumer list of things to do or on their Christmas shopping list: “Consult liability for building a massive library”. It doesn't happen.

The second reason why it's not very consistent with how we act as consumers is that we like new stuff. The provision is $5,000 for what you've done today, but if you go out tomorrow and start amassing a new library, or download, or steal the latest, greatest film, looking forward, you're not immune. The reality is that we all enjoy current content.

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

I'm referring to large-scale infringers, Mr. Fewer, and those who might have a repeat instance of doing it, given that the threshold of liability would only be $5,000. Are you concerned about that?

[David Fewer]

They'd be users, right?

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

Of course.

[David Fewer]

When I say “users” I mean “consumers”.

Large scale infringers, if they're on a commercial scale, the commercial infringers, are not captured by the minimum.

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

I think I'm over. I'm being gonged here.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you very much.

I will now let Mr. Cardin have the floor.

You have two minutes.