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

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

Last week or the week before we had CRIA and MapleMusic here. They've blown off the issue of the digital levy, and I don't know what their position was on the mechanicals. They didn't seem to be all that important. They said that this is a $400-million-a-year industry. These revenues were fairly inconsequential to them.

It seems that it's a fairly large chunk of your revenue stream, and that revenue stream is going back to artists. How important do you think maintaining these revenue streams is in today's music environment?

[Casey Chisick]

I guess it all depends on how you define “inconsequential”. Accepting that $400 million figure is true. We can also say that between 2009 and 2010, broadcasters paid $17.6 million for the reproduction right in musical works alone. That's a substantial amount of money in the pockets of songwriters and music publishers, any way you slice it, regardless of the amount of money that's at issue in the music industry at large.

Again, while I don't quibble with the suggestion by CRIA and MapleMusic and others that there is a larger problem at stake here, we can't throw out the baby with the bathwater. It's been said that music and music publishing is a business of pennies, and that's very true. As you know, as a former musician, and I would argue still a current musician, every penny counts, and $17.6 million is a lot of pennies.

[The Acting Chair, Conservative, Maxime Bernier]

Thank you very much.

Now I give the floor to Mr. Dean Del Mastro.

Dean, you have the floor.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chairman, and my thanks to the witnesses.

One of the things that keeps coming up at the committee is this issue of education as an included item under fair dealing. One of the big problems we've had is that we have people commenting on it without understanding what fair dealing means.

Ms. Atwood, could you, for my benefit and the benefit of the committee, define fair dealing as you understand it?

[Margaret Atwood]

Fair dealing as it is in this bill or as it would be used in common speech?

[Dean Del Mastro, Conservative, Peterborough, ON]

No, I mean how it's defined by the Supreme Court of Canada and the Berne three-step test. In that context, could you define fair dealing?

[Margaret Atwood]

Well, let's just say what it would mean to an ordinary person like me who is not a lawyer. Number one, it's fair. Number two, it would mean that some form of dealing has taken place between two sides to reach an agreement. That's what fair dealing means to the ordinary person.

What it means to the Supreme Court of Canada is up to them to define, and they haven't done it clearly enough for me.

[Dean Del Mastro, Conservative, Peterborough, ON]

Actually, you're right. The Supreme Court of Canada established that the dealing must be fair to begin with and then identified six factors to consider in gauging the fairness of the dealing. They established that copying a work is not fair dealing. That's not fair dealing. That's why there's payment for fair dealing, and no one in the education industry who has appeared before this committee...no one is suggesting that the $43 million that they are currently paying for the right to copy is in any way affected by this bill. They understand that the Supreme Court has already established that copying is not fair dealing.

The sixth point of the Supreme Court is the effect of dealing on the work. That means that the dealing can't diminish the value of the work. Therefore, this idea that including it under fair dealing wipes out the revenue of artists is absolutely false. The Supreme Court has established this, as has the Berne three-step test. But I think this all comes back to people not understanding what fair dealing is.

There are a number of good pieces out there on fair dealing. For example, Michael Geist in December 2010 wrote a good piece on fair dealing, what it means and how it reflects on education. I'd encourage you to seek that out on the Internet. I think he did a good job outlining the concept.

[Margaret Atwood]

I have met with Michael Geist and I have read his piece. And I've read a number of other pieces. What seems to come out of that is that although these people are saying the money will in no way be affected, it is still up to the artist. If a piece of unfairness comes into their view, they are the ones who have to go to court and establish that it wasn't fair.

[Dean Del Mastro, Conservative, Peterborough, ON]

If I could—

[Margaret Atwood]

If that $43 million is in fact intact, why are the educators going around saying that they won't have to pay any money anymore for copying--

[Dean Del Mastro, Conservative, Peterborough, ON]

Please stop cutting off my microphone. Thank you.

They're not saying that at all, Ms. Atwood. In their appearances here, they've indicated that they represent people who are both writers and educators and that they want to be fair to both sides.

I think it's safe to assume that the rules established by the Supreme Court of Canada and the Berne three-step test...I'm pretty confident that our educators, our educational facilities, and our provincial governments will follow the law. They have a good record in that regard.

I want to say what establishing education as an inclusion under fair dealing does. It allows education. It opens the door to the use of new technologies in the classroom without fear of liability. This relates to new, electronic materials that could be used, things that are freely posted on the Internet. It allows some of these things to be presented to a classroom for educational purposes. It's about taking our education to the next level. It's not, and it has never been, according to the witnesses we've had before us, about taking away the revenues that are established for copying. The Supreme Court has established that copying is not fair dealing. The six-step test for the Supreme Court is well established and is consistent with the spirit and nature of this bill, as is the Berne three-step test. I encourage people coming in to say it's going to wipe out educational revenues to first learn what fair dealing is.

Ms. Hebb, you have a comment.

[Marian Hebb]

Could I actually add to that--

[Margaret Atwood]

I stated that myself. Who's going to apply these six rules? Who's going to make sure that they are being applied? Are we in a—

[Dean Del Mastro, Conservative, Peterborough, ON]

Ms. Atwood, to allege that educational facilities, post-secondary facilities, educators around Canada are going to knowingly breach the law because they're not afraid of the enforcement I think is a very serious allegation. You've used very strong language, and I think the allegation—

[Margaret Atwood]

No, but who's going to—

[Dean Del Mastro, Conservative, Peterborough, ON]

—that post-secondary educators, educators in Canada, will knowingly breach copyright because they're not afraid of being punished is outrageous. It's outrageous.

[The Acting Chair, Conservative, Maxime Bernier]

Ms. Atwood, you have the floor.

[Margaret Atwood]

Just tell me who is going to enforce the six steps. Who is going to do that?

[Dean Del Mastro, Conservative, Peterborough, ON]

The courts are enforcing it. The Supreme Court has already established this, and what you're alleging is that without enforcing it our educational facilities are going to knowingly and frequently breach copyright law.

[The Acting Chair, Conservative, Maxime Bernier]

Ms. Atwood, you have the floor, and you have 30 seconds to answer.

[Margaret Atwood]

Yes. It's exactly what I said before. It will have to go to court, and what I said before is that authors can't afford that.

[Dean Del Mastro, Conservative, Peterborough, ON]

No, in fact, you're exactly wrong.

Ms. Hebb, go ahead.

[Marian Hebb]

I was going to say that some copying is fair. In the current case that is probably going to the Supreme Court of Canada now, there was a sample done, and teachers wrote down for what purposes they did their copying. Some of it was for research and private study, which is covered by fair dealing already. So when it was covered by research and private study, that was considered to be fair dealing for the purpose of this negotiation.

Now that there is going to be a new category, which will be education, there will be again some copying for education, which is fair dealing—

[Dean Del Mastro, Conservative, Peterborough, ON]

No, not copying. You're wrong.