Bill C-32 (40th Parliament, 3rd Session) Committee on March 24th, 2011

[Wanda Noel]

Thank you, Minister.

If I understood your question correctly, Madame Lavallée, you asked whether there were any copyright law infringement suits against students or teachers in the country. The answer to that question is no, not many. There may have been the odd one here or there. My own personal practice is not based on copyright infringement suits.

The point that I think is important for legislators to be aware of is that teachers and students at all levels need to have a law that has very clear rules, so that they can first of all obey them and second of all can teach what those rules are. For example, they can teach, starting in kindergarten, what you can do with the Internet and what you can't and what is respecting a copyright owner's right and what is not. The provisions of the Copyright Act define what the rights of the users are—student and teachers—and also what the rights of the creators are.

The minister's message, the very important message that I think needs to be brought out here today, is that clarity in the Copyright Act is critically important for both the people who use the act and the people who benefit economically from it.

[Rosalind Penfound]

I could add that deputy ministers of education across the country have been worrying about, thinking about, and discussing this issue of copyright for more than ten years now. What we tell our many teachers, professors, and educational administrators, when they come to ask us what they can do and what they can use....

We recognize that there's a void here. I guess the best way I could describe it, although we don't know of recent or any prosecutions against people in the educational sector, would be by way of example. Say there were a political science class occurring somewhere in the country in the next few weeks and perchance an election might be going on. Say one of those professors or teachers were to call to say that they'd really like to use the election as something to study for their class, by comparing what may have been written in the political science texts ten years ago about media and the democratic process, through copying one or two pages from that book for the 18 kids in the class, with what's happening on the Internet, what's being tweeted, what's been in the print media and what is on the television.

They would wonder which of those things are okay for them to do. As deputy ministers of education and ministries of education across the country, we have no clear answer for that. So we think that there's a clear void in the law and that we need very much to have clarity around this and that the proposed bill strikes the right balance and will provide that clarity.

The bottom line is that good public policy is needed.

[The Chair, Conservative, Gord Brown]

Okay. Thank you.

We'll move to Mr. Angus, for seven minutes.

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

Thank you, Mr. Chair, and I thank the witnesses for being here today.

I would like to say, from our position in the New Democratic Party, that your presence here today is very much welcomed, regardless of whether this is the last meeting of this committee or not. I believe that this committee has done excellent work. We've heard a wide range of views. I think we're coming to some very good, clear, concise understandings of copyright, which I'm hoping will be picked up very soon after the next Parliament, whatever that parliamentary configuration is.

With regard to the questions I'm going to ask you today, I don't think we need to hear much more philosophy about copyright. I'm interested in the nuts and bolts of what is practical, what is enforceable, and what is impeding our abilities to use these works in ways that benefit our communities.

I had raised the concern with the librarians and archivists the other day that some of the provisions in the bill seem to have an unnecessary impact on the ability of people to access works for education in the interlibrary loan provision, proposed subsection 30.01(5). There's a limit of five business days on what you can use, and then you can't use what was sent digitally through an interlibrary loan. No, proposed subsection 30.01(5) has a 30-day limit on course materials. Course materials have to be destroyed after 30 days. The other one was the interlibrary loan, that you had it for five days. It seems to me that would put students who are learning in a distant environment at a major disadvantage over other students. Would you have opinions on those?

[Ramona Jennex]

Yes, thank you for those questions. I'm going to defer to Wanda.

[Wanda Noel]

Thank you, Minister.

The Council of Ministers' position on the 30-day destruction requirement is that it should be removed from the bill, for the simple reason that from the teacher's perspective, educational resources to create lessons are scarce and precious. It makes no sense to destroy them when they will only have to re-create them to teach the course again in the next semester or the next term.

From the students' perspective, the destruction requirement is equally unacceptable because students build from one course to another. If you take a first-year chemistry course, for example, you need to keep your notes from your first course in order to build the knowledge when you take the second course.

The position is that the 30-day requirement should be removed.

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

I'm interested in what impact the technological protection measures will have on visually impaired, deaf, or hard of hearing students. My oldest daughter went through the entire school system with a major hearing disability. Every single year we had to deal with her ability to access courses in a fair, reasonable manner. On the one hand we have laws that guarantee students complete access in the classroom, and yet, for example, if a teacher is showing a film that's not closed-captioned, under the digital rights management protection laws you would have to break the lock in order to provide closed-captioning on a film for a student to be able to participate alongside other students.

Are you concerned, in terms of the visually impaired or deaf students, about their ability to have fair access alongside other students if the technological protection measures remain unamended?

[Ramona Jennex]

I'm going to refer that to legal counsel.

[Wanda Noel]

As I understand the provisions in Bill C-32, there is a carve-out that allows for circumvention of a TPM in the case of providing access to a perceptually disabled student. There is a problem with the drafting of the provision, because it requires that you do not “unduly impair” the technological protection measure. There's a great deal of scope within “unduly impair”. Some of the perceptually disabled organizations are saying that you can't. It means you have to put the TPM back onto the work and that is impossible to do.

I understand a subsequent witness to us this morning is representing perceptually disabled people, but from the Minister of Education point of view, we would like to see that “unduly impair” technological protection measure condition removed from that provision.

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

I wanted you to raise that on the “unduly impair”, because again it seems to me that there are elements in the bill that lay out a very reasonable framework but then sometimes seem to get too intrusive, if we're going to “unduly impair”. It seems to me, from seeing what happened with DVDs with adding closed captioning, you're basically making a new copy of it. So what's the point to add a technological protection measure? Are kids going to take that home and put it on isoHunt and trade it with all their friends? It's highly unlikely. This is used in a very specific case.

Do you believe that we would be able to maintain the credibility of the intellectual property that's being used if we strike “unduly impair”?

[Wanda Noel]

I'm not a technical person, but from my theoretical understanding my answer would be yes.

But the council's position and that of many of the user communities—libraries, archives, and museums—on technological protection measures overall is that you should be able to break the locks and circumvent, as long as your purpose is not to infringe copyright. The very basis upon which that whole section of the bill is crafted is, in the council's view, fundamentally wrong.

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

I'm interested in your concern about the digital delivery of course materials. One of our understandings here is we're going to maintain a balance. We have collective licensing in place. The collective licensing organizations do excellent work of maintaining the rights of the creators. If we're going to be doing digital course packs to communities, why wouldn't you just accept that there should be a collective licence in place and they'll get paid and students will learn?

[Wanda Noel]

The digital course pack provisions in the bill, and I'm going to be frank here, are very hard to understand. It's the longest section in the bill. The policy objective, or the intent of what those provisions are intended to cover, in my view is overly complex. I believe the reaction in the post-secondary community is that they will not use them or access them because—

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

I'm sorry—I only have a second here.

For my clarification, then, is the language unduly difficult, or are you objecting to paying a collective licence for digital course materials?

[Wanda Noel]

No, not at all. Digital course packs—

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

If the language were cleared up, that would make it something that would be fairly straightforward?

[Wanda Noel]

Possibly it would be used. But there are problems, and we don't have time to go into that today. In the submission there are major problems with how this section is structured.

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

Thank you very much.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move to Mr. Fast for seven minutes.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Chair.

I thank all three witnesses for appearing before us today. I want to thank you for one of the most articulate explanations and defences of the fair-dealing provisions in this bill.

I agree with you. I think this does strike the right balance. I think you referred to the right balance being based on principles of fairness. This bill does that. And I think you referred to the bill as representing good policy. I want to assure you, in regard to the several amendments that you've talked about and have referred us to, that we will certainly take notice of those and seriously consider them.

I suppose what really troubles me and is profoundly disappointing is that after all of this work, after already having heard over a hundred witnesses, having received hundreds upon hundreds of submissions, the opposition coalition has chosen to basically defeat and throw out this work we've done on a bill that is critical to our economy.

You've referred to the fact that it is critical that this bill be passed and passed right away. I think there are several reasons why I would suggest that it's critical. It's critical for our digital economy, for our knowledge economy, for education, and for our creative industries. As you know, this is the third bill that is going to be dying because of elections being called. For me it's profoundly disappointing that we're going to lose all of that good work because of some political machinations on the part of the opposition coalition.

Having said that, you had referred to the expansion of fair dealing to include education as striking the right balance, and I agree with you. There are some who suggest that there's going to be considerable lost income to publishers and some creators. I disagree with them. In fact, I think you're probably familiar with the Alberta versus Access Copyright case, which is a Federal Court of Appeal case that actually states that the fair-dealing provisions contained in Bill C-32 do not impact how fair dealing will be applied. The CCH case, the Supreme Court of Canada case, applies and makes it very clear that essentially there is no loss of revenues. This is simply clarifying what fair dealing is, especially in the context of education.

I wanted to deal with the digital lock issue, and I've taken note of your comments regarding that. One of the complaints we've heard from many of the creators is that this balance we're seeking to strike appears to have shifted the balance primarily in one direction, and that's away from protecting creators and their copyright. It's one of the reasons why we, as a government, have actually maintained some protection for digital locks. We don't want those digital locks circumvented, because it opens up a whole new opportunity for abuse.

I wanted to refer you to clause 47 of the bill, which actually provides the minister with very broad regulatory power to introduce additional circumvention exemptions where the minister could say that as we move forward, as we develop experience with this new bill and the new legislation, we recognize that we may have to continue to provide additional opportunities for circumvention. I believe the flexibility that's designed into this bill will address some of the concerns that you've raised regarding digital locks. We don't know what the future holds, we don't know what new technology will arise, but we provide the minister with the tools to do this without having to go back and make statutory changes.

Perhaps I could have your comments on whether you support those broad regulatory powers and what impact those may have in the future as we continue to develop this experience with this new copyright regime.

[Ramona Jennex]

Around the issue of the digital lock, I feel the fair dealing with the Supreme Court law covers that.

In terms of your other comments, I am going to look to legal counsel to talk about the digital lock law aspect of that.

Thank you.

[Wanda Noel]

Thank you, Minister.

My legal advice to the council--and you're not going to like my answer--is that users' rights in a copyright law should not be defined by regulation. They belong in a chamber like this, in a public debate in Parliament.

I've been involved, over my 30 years in this copyright business, in drafting regulations pursuant to the Copyright Act. The 1997 amendments had a couple of regulatory rounds. The issues about digital lock and exceptions to it are a balance between protecting a technology and users' rights. I think those rights have to be debated publicly, and publicly stated in the act, and not a behind closed-door regulatory process.

[Ed Fast, Conservative, Abbotsford, BC]

Let me just pop in at that point.

You referred to “user rights”.

[Wanda Noel]

Yes.

[Ed Fast, Conservative, Abbotsford, BC]

Now, I've reviewed the Copyright Act. There's no reference to user rights. That term is not used. In fact, the only reference to user rights that I've seen is in the CCH case, where I believe it's used once. In fact, it's not even....

The Supreme Court that's actually creating the term is simply adopting how some of these rights are described by others in the industry. I do know that the Copyright Act refers to “sole right” on at least nine or ten different occasions, and each time it's the right of the copyright holder. That has to be our starting point when we're dealing with copyright.

The creators, they create something. They have the right to ownership in that. When we create additional rights for users, perhaps to circumvent digital locks, that's a derogation of the powers or the rights that copyright holders have.

So we have to be very careful as we move in that direction that we do so in a measured way, which again is why the minister's power to regulate allows us to adapt to the changing environment and to learn from the experience going forward.

I'm quite confident that the minister, whoever it might be going forward, is going to act very reasonably in ensuring that users have access to fair dealing and if required are able to circumvent to do so. But we want to make sure that the copyright holders also have the ability to enforce their copyrights. That is the starting point, defending private property, which is found in copyright.

Again, when we're trying to find that balance, it's usually a quid pro quo. It goes both ways. There are many creators who are saying that balance has been shifting very much in favour of the users and very little going back to the creators.

I just want to leave that with you.