Bill C-32 (40th Parliament, 3rd Session) Committee on March 10th, 2011

[Georges Azzaria]

I don't agree. I believe you have to put the question to the collectives that have agreements in the education sector. I believe that's destabilizing them to an enormous degree. A collective, you must recall, is not a company; it's a place where there are rights holders, authors, and publishers in those cases. So this provides an essential economic contribution to those collectives. They're not private companies. Authors support them.

If we consider the revenues that are distributed by the collectives under agreements with the universities, in particular, you see that this absolutely is not insignificant and that it's part of revenue. It's been said, and I repeat it: an author's income is sporadic. It's the sum of a number of small income streams. An author is not a salaried employee who receives a pay cheque every two weeks.

We can't touch that. If we start touching important income like that, we destabilize the authors and make their situations more precarious. I think the purpose of the Copyright Act is precisely to enable them to live from their work.

[Serge Cardin, Bloc, Sherbrooke, QC]

Do I have any time left, Mr. Chairman?

[The Acting Chair, Conservative, Maxime Bernier]

Yes, one minute.

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you. Earlier Mr. Braid asked you a question about the tests established by the Supreme Court of Canada. Do those six tests enable creators to retain their rights?

[Georges Azzaria]

I believe the decision in CCH Canadian Ltd. v. Law Society of Upper Canada went too far. I don't agree with that decision. There is an entire legal discussion that should be conducted on that matter. Are you asking what I think of that judgment?

[Serge Cardin, Bloc, Sherbrooke, QC]

Yes.

[Georges Azzaria]

It seems to me it's a decision that went too far, especially because it invents a user right. It's a pure invention. In fact, it's no longer been a fiction since the decision, in 2004, but there was no previous legislative trace of it. So to say that a user has rights, in my view, is an invention by the Supreme Court, and it has somewhat destabilized the very precarious balance on which copyright was based. As for the six tests, they must be looked at one by one. Some are obvious, but others, I think, go much too far.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you very much.

I now give the floor to Mr. Ed Fast, for two minutes.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Chair.

Professor Azzaria, I think I just heard you say that the CCH case went way too far. That's a Supreme Court of Canada decision. I think you said they were inventing a regime for fair dealing that went too far.

I assume you're expressing non-confidence in the Supreme Court. Am I correct?

[Georges Azzaria]

It's an odd question because the Supreme Court, as we know, is still—

[Ed Fast, Conservative, Abbotsford, BC]

It's very appropriate. You were very bold in your statement that the CCH test went way too far. You asserted that the Supreme Court was guilty of invention.

Have you lost confidence in the court?

[Georges Azzaria]

Yes, because I obviously trust the legal system. It's because there's no Supreme Court above the Supreme Court that this judgment was not overturned.

At some point, in our legal system, a higher court makes the decision, but very often the Supreme Court's decisions are not challenged, even by the—

[Ed Fast, Conservative, Abbotsford, BC]

Professor Azzaria, that's a very interesting concept you're suggesting--

[A voice]

It's radical.

[Ed Fast, Conservative, Abbotsford, BC]

--that the Supreme Court of Canada has no higher court that supervises it, especially coming from a law professor.

Let me ask you one other question, and that has to do with your statement. You made a statement that Bill C-32, with the amendments it makes, does not comply with our international obligations. Yet, on the other hand, you said that we are, with this bill, in fact implementing the WIPO treaties.

So you're saying that there somehow is non-compliance, and yet, on the other hand, there is compliance with WIPO. Which is it?

[A voice]

It's opaque.

[Ed Fast, Conservative, Abbotsford, BC]

Is it opaque? Is that your position?

[Georges Azzaria]

The three-step test comes from the Berne Convention, not the WIPO treaties. That's the distinction that has to be drawn. So this three-step test comes from article 9.2 of the Berne Convention and article 13 of the TRIPS Agreement, and thus from the WTO. I don't think the bill is consistent with that.

There are also the WIPO treaties that refer to the right to access, for example, and that will also refer to technical protection measures. That's fine as far as it goes. In any case, the right to access exists.

At the same time, if you looked a little into the WIPO treaties, you'd realize that the match may not be perfect. And I believe the Artisti people said that.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you, Mr. Azzaria.

Thank you, Ms. Morin and Mr. Legault, for being here with us.

Thank you, members.

This ends the 18th meeting of the legislative committee on Bill C-32. The meeting is adjourned.