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

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

It doesn't pass the test.

[Raymond Legault]

No.

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

Is Bill C-32 acceptable?

[Raymond Legault]

No.

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

Would you say that it would be preferable for artists to live with the current act, which was amended in 1997, rather than accept Bill C-32?

[Annie Morin]

The Copyright Act nevertheless needs to be improved, but not in the way proposed in Bill C-32. In the circumstances, it would be better to keep the present act rather than include the provisions of Bill C-32, which might cause utterly irreparable harm. One need only think of private copying. From the moment consumers can make copies in all kinds of artistic fields for private purposes—that wouldn't just involve music, but books as well, in particular—it will be difficult for a subsequent government to repair that. People will have enjoyed that option without ever having to pay a cent. Free copying will have become an acquired privilege. Once everything is free of charge, it's hard to say you're sorry, but that this is the result of the work of people who deserve to be paid. In short, in the circumstances, I believe it would be preferable for Bill C-32 not to be adopted.

[Raymond Legault]

Ms. Lavallée, I simply want to add that the texts were highly legal in content, but that we really tried to see how this bill could be amended. Right now, there is a shortfall. In the case of iPods, royalties were previously paid, just as royalties were paid on all patents subject to a licence. However, the Supreme Court overturned the decision of the Copyright Board of Canada on a technical detail.

Thank you.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you.

I'll now give the floor to Mr. Angus.

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

There have been many technological revolutionaries in history. University courses are full of studies about Gutenberg, Thomas Edison, and Henry Ford. I'd suggest Karlheinz Brandenburg should be included.

Karlheinz Brandenburg perfected the MP3. He took audio analog files and with very high rates of compression and a very low bit rate he destroyed one of the biggest entertainment industries in history, without meaning to, but that was the effect, because it was so easy.

Let's suppose a friend comes over to my house and says he's got this great CD I should listen to. I put the CD in my computer and I make a copy. It takes all of 20 seconds. I give his CD back to him. Then because I think it is a great song, I e-mail the song to my daughter, saying that she should really check out the song. She listens to the song and thinks it's great, and she might e-mail that song to two or three of her friends.

It could be argued that this is all lost revenue, or it could be argued that some people actually would buy a copy. It's hard to define exactly what's going on with the copying. It seems to me there have been numerous attempts to, as the record industry says, put the genie back in the bottle. They thought they would ignore the technology, and that didn't work. Then they decided they would sue a lot of kids to teach them to respect the rules, and 35,000 lawsuits later, the kids moved on to other things and it didn't restore the market.

Now the Conservatives are working on this belief that if they shut down isoHunt and they put digital locks in place, somehow the market will come back. I think that is an absolutely naive belief. That's not to say anybody supports what's happening with isoHunt, but I don't know anybody who goes to isoHunt. The copying that's being done all across Canada, all across the world, is by people trading music because they love it.

I'm asking what our solution should be. It seems to me in 1997 Canada came up with a solution when cassettes were being recorded, and that was minuscule compared to what's being copied today. The copying will go on regardless of isoHunt, regardless of lawsuits, regardless of shutting down BitTorrent. Does it not seem that we need to have a revenue stream in place that we've already had as a principle to ensure that artists get something out of the copying? Isn't that the principle of the private copying levy?

[Annie Morin]

Part of the solution would definitely be to have an exemption in the private copying system for everything that can potentially be used to copy music, for all devices that are designed, created and marketed to make copies of musical works. That's one of the possible solutions.

On the other hand, you're getting into a broader debate, concerning illegal exchanges that are currently being done over the Internet. In their briefs, the UDA and Artisti have advocated a basic solution in which there should at least be a "notice and withdrawal" system. Such a system would make it possible to withdraw content as soon as there is any indication of illegal activity on the Internet and thus to prevent files from being increasingly exchanged and from being accessible to more people illegally. That's one option.

We also advanced a model during the consultations that had been developed in France by Mr. Patissier. That model also calls for payment of financial consideration that would be collected by Internet service providers. They benefit—perhaps involuntarily—from the significant economic impact of illegal downloading. Whether we like it or not, with illegal downloading, there is very high bandwidth use and, as a result of that heavy traffic, providers can charge ever-increasing amounts to download more content.

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

I guess I'm concerned about the copying, as opposed to the illegal...and people posting. Copying is going on. I certainly support the provision to allow you to be able to back up what you want to your iPod or to your computer. That is going on all over, but it seems we don't have a revenue stream for it. When the Copyright Board adjudicated the original tariffs that were going to be put on the iPod, it seems to me they made it very clear that it was strictly for music players. I don't know, maybe some of the artist groups wanted a very wide interpretation, but the Copyright Board was very narrow in their interpretation. They were also very narrow in terms of the prices they were going to allow.

Do you believe we can have a reasonable regime in place for private copying within a digital realm that will not be market distorting or that will not unfairly impact other music uses but that are not music players?

[Annie Morin]

That's precisely the beauty of the innovative system we have in Canada. The Copyright Board of Canada is an economic regulatory body that ensures that the royalties charged are not unreasonable. It also ensures that the market suffers no harmful effects.

To date, the Copyright Board has done a very good job. At the time, it had to set a tariff for digital audio recorders—it was aiming solely at digital audio recorders, that is iPods and MP3 headsets—that was $2 to $25 depending on the capacity of the device. While those amounts were collected, there was no negative impact on the market.

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

Is it not correct that the minister can set the rate? For example, what if iPods dropped dramatically in price and you had a $15 fee? That could be market distorting. At the end of the day, the minister has the right to set...or to do it by percentage, in terms of what that fee is going to be.

[Annie Morin]

In fact, the Copyright Act makes it possible to establish a percentage, by regulation, if I'm not mistaken. I had the opportunity to testify on this subject when I appeared before the committee as president of the Canadian Private Copying Collective. It is possible to limit the amount, to set a ceiling. I believe it would be possible to establish a percentage, if that was what the government wanted.

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

Thank you.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you.

I'll give the floor to Mr. Braid.

Peter, you have the floor.

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

Thank you, Mr. Chair, and thank you to our witnesses for being here this afternoon.

Professor Azzaria, in your opening statement you used some terms and descriptions of Bill C-32. For example, you said you thought it was a bit of a legal puzzle. You also said you thought it was opaque. I might suggest that those descriptions more appropriately apply to some of the presentations we've heard before this committee, including the ones today.

In any event, I'd like to try to get some more specifics, because you've made some broad statements.

As well, in your opening statement you said you thought the bill needed a little bit of housekeeping, but then in a response to a question you suggested the whole thing should be scrapped. Which is it?

[Georges Azzaria]

I'm going to answer in French.

In my introductory remarks, I merely set the table. We can definitely say that the bill is confusing, that it is unclear, as I said earlier. And here is evidence of that.

When I present this bill to my law students, they have to take two or three hours to understand what it means. It's quite something for law students not to understand a federal bill. They have to refer to the act, ask each other questions and discuss the matter amongst themselves in order to arrive at an understanding of what it might mean. They wind up thinking that a judge may explain it to them one day. There's a problem here. I could give you a number of other examples.

I've already cited the example of the definitions of "fair dealing for the purpose of... education", "lesson" and "for instruction", which are in the bill and are being added to other existing definitions.

For example, the difficulty in understanding the aim of the proposed subsection 27(2.3) constitutes evidence for a legal proceeding. I challenge all of you to explain what the proposed subsection 27(2.3) means. It is one way of prohibiting Internet service providers from providing Internet services.

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

Great. Thank you. So Bill C-32 needs a little bit of housekeeping, then.

We've had a number of eminent organizations, national organizations, before this committee. They've come to us and they've said the government should be applauded for the work that's been done on Bill C-32, that it's clear there have been extensive consultation processes that have taken place, that the bill perhaps isn't perfect, that it needs to be tweaked here, refined there, but that we've done a tremendous job of buttoning it down.

We had the Canadian Chamber of Commerce. We had the Canadian Council of Chief Executives. We had the Association of Universities and Colleges. We had student associations. We had the recording industry and we had the movie industry. They've all come here and said that.

Were they all wrong?

[Georges Azzaria]

I was here when Mr. Manley came and testified before the committee. Personally, I'm trying to get a more comprehensive perspective. That's why I'm telling you that, when we look at the whole, we see that it is opaque.

Some might say that they're very pleased because they're saving $25 million, of course, but, on the whole, it may not be that true.

I would even say that, in Quebec, I'm not sure the education community is that pleased about the technical protection measures, for example. I've heard a lot of people from that sector in Quebec, in the universities, among other places, say that this is a problem. People are being told that they have access to works, that they qualify for exemptions, but that, if there is a technical protection measure, they will no longer to be able to enjoy that work.

When you dig a little below the surface, you realize that there definitely isn't any consensus. The consensus is based on details. In my view, the people applauding are only there for very specific interests. I'm trying to offer you an overview that addresses the effects that this act could have.

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

Thank you.

In your opening comments you spoke about some of the realities of the Internet as well. One of the things that Bill C-32 does finally is allow Canada to implement the provisions of the WIPO treaties. Do you agree with that?

[Georges Azzaria]

Yes. I think we're going too far into the technical protection measures. You must remember that the WIPO treaties were signed in 1996 and that technology has vastly changed, a fact that has been emphasized on numerous occasions. It is virtually no longer being used. Moreover, a lot of people wondered whether this was copyright. A technology is being protected, and it was already sanctioned in any case.

There's the right of access, for example, which is a good thing. There are definitely measures that enable us to head in the direction of certain provisions of the WIPO treaties because reference is generally made to them. However, on the whole, I believe this doesn't pass the WIPO test and that a "notice and withdrawal" system, for example—which has often been emphasized—would be much more effective than technical protection measures.

In this case, there's no attempt to involve access providers, and that's why they applaud, but I believe they're part of the equation.

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

Do you agree that piracy within the music industry, piracy within the movie industry, is a problem with respect to the Internet and a problem that we should be addressing?

[Georges Azzaria]

I didn't hear the start of your question, sir.

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

Do you agree that piracy, music and movie industry piracy, is a problem on the Internet?