Bill C-32 (40th Parliament, 3rd Session) Committee on March 22nd, 2011

[Pam Dinsmore]

I would add that notice and notice is not a silver bullet; it's just the first step in a process by which rights holders can go after those they allege are infringing. The role we play through notice and notice is to send the notice off to an alleged infringer on behalf of the rights holder. Then the rights holder can use that when they decide to take that alleged infringer to court.

We are an essential part of the process, but we can't make the whole process work by ourselves. There's a responsibility on the part of the ISP, and a responsibility on the part of the rights holder. We believe that the act very clearly defines the role of each player and stakeholder in the overall copyright regime.

[Serge Cardin, Bloc, Sherbrooke, QC]

Ms. Dinsmore, I would like to quote you. In your presentation, you said the following: “In our view, notice and notice is the best and fairest way to make individuals aware that they are accused of illegal peer-to-peer file sharing...”

You went on to say: “...while recognizing that ISPs should not unduly interfere with our customers' online activities.”

What do you mean by that?

[Pam Dinsmore]

The role we play is to send the notice on to the alleged infringer. We're not making some sort of determination that our customer should have their service terminated. That decision has to be made by the courts. The courts have to determine, with the information put forward by the rights holder, whether that alleged infringer actually is infringing. If the court makes that decision, then we will always follow a court decision or a court order, but we are not in a position to make that decision.

[The Chair, Conservative, Gord Brown]

Thank you.

Mr. Braid, you have five minutes.

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

Thank you very much, Mr. Chair, and thank you to our presenters for being here this morning.

I'm going to focus on notice and notice as well, and I would like to have the opportunity to ask each of you a question.

I'll begin with you, Madame Morin. In a response to an earlier question, you mentioned that the notice and notice protocol has been in place for about a decade. Do you know how the protocol was first developed, what the genesis was, who was involved in creating it? Could you elaborate on that?

[Suzanne Morin]

At a voluntary level, there were discussions between part of the content industry and the Canadian ISP community, both cable ISPs and—

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

So rights holders drove it?

[Suzanne Morin]

—rights holders, together with Canadian ISPs. No agreement per se was ever achieved, but rather a sense from some Canadian ISPs that if we receive them, we would pass them on. There was no MOU or anything signed. We didn't even agree on the content of the notice, but rather if we receive them, we would make best efforts to pass them on.

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

You were open to that discussion, and through collaboration with rights holders you put this system in place. Is that fair?

[Suzanne Morin]

It happened just as I said. There was no more to it than that, no discussion about form or anything.

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

Great. Thank you.

Madam Dinsmore, I have one question to start. You shared some very compelling statistics about the notice and notice experience at Rogers—how many customers it really impacts; a very small number. Could you table that data with the committee? Would you be prepared to do that?

[Pam Dinsmore]

Yes, I would.

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

Great. Thank you.

Secondly, one of the concerns we heard about is that the notice and notice regime doesn't have an escalating response. But in your presentation, you state unequivocally, and I'll quote, “It does result in discouraging repeat offenders.” Could you just elaborate on that, please?

[Pam Dinsmore]

That's the information we get from our tracking, because we know that the numbers, as I said before, decline exponentially with every additional notice going to a household. So the number of people getting a second notice is a third of the number of those getting one notice. To give you hard numbers, it goes from 70,000 to 21,000, to 8,000 on the third notice, down to 4,000 on the fourth notice, and down and down. Then we get to the number of households getting 33 notices—two households get 33 notices. There's a ladder effect, but it's downward escalating.

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

Thank you very much.

In your presentation, you also seem to imply that notice and notice is being looked at in other jurisdictions. Am I hearing this correctly? Is this an evolving protocol that other jurisdictions are looking at?

[Pam Dinsmore]

Yes, it is. The Hadopi system in France that many people refer to is a system where the ISPs, if they get a notice from a rights holder, send that notice to the agency, Hadopi, who then sends the notice on to that ISP's customer, so there's now an intermediary. But it's a graduated response, but it's a notice and notice regime. Ultimately, a judge makes the determination as to whether or not that person is infringing the rights holders' copyright.

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

Thank you.

Finally, Mr. McTaggart, you've stated your position very clearly--and eloquently, I might add--with respect to a proposed iPod tax, which, as you know, the government is very squarely against. One of the other proposals we've heard out there from other constituents, the same constituencies that seem to support a possible iPod tax, is this notion of an Internet tax or an ISP tax, which we on this side are also squarely against. Could you comment on that proposal?

[Craig McTaggart]

Well, the principles that explain why it wouldn't be a good idea are very similar with respect to digital devices: you're putting an arbitrary fee on top of a general purpose technology or a general purpose service that Canadians use for all sorts of purposes. It effectively punishes those who don't use the Internet for one purpose in an attempt to make up for the wrong caused by a very small number of people who do abuse it.

Remember that a lot of people use the Internet to acquire legitimately licensed entertainment products. We provide a general purpose platform that we keep making better and better so that people can use those services. If it has the unfortunate effect of providing better and better access to illegitimate services, well, that's not an intended consequence. But that's why it's so important to go after those illegitimate services and shut them down.

[The Chair, Conservative, Gord Brown]

All right. Thank you very much. That is the last of this round.

I'd like to thank our witnesses for coming.

We will suspend for a few moments and come back with our second hour.

[The Chair, Conservative, Gord Brown]

I will call this 19th meeting of the Legislative Committee on Bill C-32 back to order.

In the second hour we will hear from Arash Mohtashami-Maali, from the Canada Council for the Arts; from the Canadian Federation for the Humanities and Social Sciences, we have Jay Rahn; and from the Canadian Library Association, we have Victoria Owen and Kelly Moore.

Each organization will have five minutes. I'll go in the order of the sheet.

We'll start with the Canada Council for the Arts for five minutes.

[Arash Mohtashami-Maali, Head, Writing and Publishing, Arts Disciplines Division, Canada Council for the Arts]

Thank you, Mr. Chair.

My name is Arash Mohtashami-Maali, and I am the Head of the Writing and Publishing Section at the Canada Council for the Arts. As an introduction to this presentation, I would like to give the members of the committee a brief description of the Canada Council and its mandate.

The Canada Council is a Crown corporation that was created by an act of Parliament in 1957 to “foster and promote the study, enjoyment and production of works in the arts”.

Our mandate is to help Canadian artists and arts organizations play a leadership role in Canadian society. Our role is to help our society to access its arts and culture and to engage with these leaders in building a better society based on such fundamental values as freedom of expression, the right to difference, and the right to a unique identity within a plural society.

This is the spirit and vision that we are bringing to our presentation to the committee, in order to share with you our ideas on Bill C-32. We understand perfectly the need for a reform of the Copyright Act. It is obvious that defining a legal framework for this subject within the larger conversation on intellectual property reinforces the commitment to focusing particular attention on the needs of artists and the arts in Canada. We applaud this effort, all the more so since new technologies and globalization, together with the influence of the Internet and new media, have not only contributed to the disappearance of physical borders, but have also made possible the universalization of ideas and literary and artistic creation, and the introduction of new working media for creators.

We have seen the effects of piracy in the arts, especially in the fields of music, film and literature, and it is time to equip the Canadian justice system with the necessary legal tools to protect the interests of authors and artists in Canada.

We all agree that the act must take to heart the protection of the arts and literature in Canada and must ensure the right to an identity that is both distinctive and diverse. This act has to support the best efforts of our artists, writers and intellectuals and their desire to maintain close ties and open dialogues with today's world, building a place of choice for Canadian culture and guaranteeing its survival.

We also wish to thank the committee for listening attentively to the different stakeholders representing the many artistic and cultural communities concerned. It is heartening to see that the bill is being given special attention thanks to this consultation.

Our unique perspective on Canadian creation and our profound understanding of this community mean that we have a privileged contact and first-line responsiveness for hearing the needs and the reaction of the arts communities regarding Bill C-32. We believe that this act, inextricably bound as it is to the fundamental values of our society, must play a unifying role. While it must reinforce in an ethical manner the role of the artist by recognizing his rights, it must also ensure the continuity and fair treatment of independent agencies, corporations and institutions.

As we mentioned earlier, the artistic and literary communities want an inclusive act with legal tools that not only respond to the current changes, but also includes those measures which, over the years, have protected intellectual property in the arts. While new realities have transformed the arts world, the traditional means continue to make up the bulk of the market.

The Canada Council is not a legal expert, but we understand the concerns of the different arts communities. We understand that the introduction into the act of such ideas as 'fair use' is a source of discord and disagreement within the arts community. Every day we witness the preoccupations within these communities, as they express their reservations about the application of these new ideas. We believe that the introduction of a more precise definition would help them come to a better understanding of the position of the act with regard to the rights of individuals and organizations.

We appreciate the declaration in the preamble to the act (paragraph 1) stating that this act is “an important marketplace framework law and cultural policy instrument that, through clear, predictable and fair rules, supports creativity and innovation and affects many sectors of the knowledge economy”. We are confident that the present efforts of the government and Parliament will ensure that Canadians benefit from an act that is progressive and far-sighted, an act that is open but also solid, and that will protect Canadians and their interests. We agree that clarity is the key element of an act that is vital to the cultural survival of our country. We support the effort to establish an act that unifies our citizens around the basic principles of our constitution, and we support the idea that this act must give artists, writers and thinkers “the ability to assert their rights...”

Thank you, Mr. Chair.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll now move on to the Canadian Federation for the Humanities and Social Sciences for five minutes.

[Jay Rahn, Chair, Copyright Committee, Canadian Federation for the Humanities and Social Sciences]

Thank you, Mr. Chairman, for inviting the Canadian Federation for the Humanities and Social Sciences to participate in your study of Bill C-32 to amend the Copyright Act.

I am Jay Rahn, chair of the federation's task force on copyright. The federation represents more than 50,000 members who work in Canada's libraries and museums and who teach and undertake research and creative work in Canada's universities. On their behalf, I commend your initiative to modernize copyright legislation. Forward-looking copyright policies will help researchers and creators leverage opportunities that digital technologies present while ensuring copyright owners are fairly compensated. I assure you that our community commends several of Bill C-32's proposed amendments, in particular the addition of education to the list of fair dealing exceptions and the expansion of fair dealing to include parody and satire. We also appreciate the challenge of shaping legislation that incorporates feedback from multiple parties and serves the public good. However, we believe some areas of the bill would greatly benefit from minor adjustments. We did not aim these adjustments at avoiding certain costs in producing teaching materials. Indeed, educators believe that creators, a group that includes many teachers, should be fairly compensated for their work. This is intrinsic to copyright. Recent figures show that Canadian university libraries, for example, spend over $300 million annually, as the committee is already familiar with, to buy and license new content for research and learning.

Our written submission identifies several changes to areas that may create unintended barriers to access or result in avoidable problems of compliance. But for the purposes of this presentation I will review the two most important aspects of the bill for our community.

First, the phrase, “such as“ or “ including, but not limited to”, should be added in the list of fair dealing exceptions to make it suggestive rather than exhaustive. In this regard, we support the inclusion of the fair dealing exception for education. The Supreme Court of Canada has set out factors to help determine if copyrighted materials have been used fairly. These factors were in fact applied in a recent Federal Court of Appeal case that upheld a decision that prescribing multiple copies of a work to a class of students would be unfair. Adding education to fair dealing does not spell the end of publishing. Instead, it could further facilitate the use of Canadian material in classrooms across the country. For example, a professor could podcast a lecture that includes a copyright-protected image without unduly worrying about copyright infringement. We need to ensure that copyright law punishes pirates, not educators trying to teach new content in new ways.

Second, we feel that the language concerning technological protection measures, TPMs, should be amended so it is not an offence to circumvent a TPM for actions that are otherwise non-infringing. This revision, we believe, is consistent with the 1996 World Intellectual Property Organization Internet treaties that Canada has signed. If the digital lock provisions remain unchanged, Bill C-32 would make it an infringing act for anyone, teachers, consumers, and even creators, to break a digital lock for all but a few purposes. For example, those who simply want to shift scholarly articles between devices and formats would be in contravention of the bill. It would also punish creators who increasingly use copyrighted works as a basis for their novel expressions in follow-on works. We believe these changes would result in an act that would better help Canada meet future digital challenges and seize opportunities both domestically and internationally.

Thank you for the opportunity to discuss our views. I welcome your questions.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move on to the Canadian Library Association for five minutes.

[Victoria Owen, Chair, Copyright Committee, Canadian Library Association]

Good afternoon, and thank you, Mr. Chair.

My name is Victoria Owen, and I'm the chair of the Canadian Library Association's Copyright Committee. With me here today is Kelly Moore, who is CLA's executive director.

We greatly appreciate this opportunity to meet with you today in the context of your study of Bill C-32. I'm currently the head librarian at the University of Toronto's Scarborough Library, and I have been the director of a public library and the director of library services at a library for the print disabled. In all of these environments copyright legislation has had a direct impact.