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

[The Chair, Conservative, Gord Brown]

Thank you very much, Mr. Fast.

We'll now move to the second round of questioning. It will be a five-minute round.

For the Liberal Party, we have Mr. Rodriguez. I understand you're going to split your time with Mr. McTeague.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Yes, I'll try to.

First of all, I have to say that it's a bit sad to see that Mr. Fast took some time at this important committee to make some partisan comments.

If I wanted to make some partisan comments, I would remind him that in 2005 we had a very good bill that was brought down when the coalition, the NDP-Bloc-Conservative coalition, brought down the government.

If I wanted to be partisan, I would also remind him that there was another bill in 2008, and that died because the Conservative government called an election.

If I were partisan, I would remind him that it's been two-and-something years now that they were elected--including prorogation, of course; we have to remind them of that.

If this has been delayed, it's certainly not been because of the Liberal Party, Mr. Chair. You know that very well.

I'll now turn to our guests.

Good morning.

Thank you for being here with us today.

What connection is there between you and Access Copyright?

[Ramona Jennex]

Our relationship is...and will stay the same with these amendments.

I will have that further clarified, though, by our legal counsel, if you would need any further comments on that.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

From what I understand, you are involved in a major court case against Access Copyright. Correct me if I am wrong, but I believe that you had a disagreement regarding fees applicable to students. The Copyright Commission dealt with the case and ruled in favour of a new fee with which you disagreed. You took the case to court, and I believe that Access Copyright won and maintained the fee. My understanding is that you want to take the case to the Supreme Court. Is that correct?

[Ramona Jennex]

Thank you for your question. I will have Wanda answer that for you.

[Wanda Noel]

The answer to your question is yes. A leave application has been filed with the Supreme Court of Canada to hear a very narrow issue that comes from that case. It's not all of it, it's a small part, but the principle is very important. The principle is, can a teacher make a copy for students in his or her class?

I'm going to take two minutes, because from a policy perspective this is really important. The case law in the Federal Court of Appeal says that an online music seller can stream music to a prospective customer and that's fair.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

I am sorry to interrupt you, but I have only five minutes.

What happens to the money that is collected in the meantime? What happens to the money that has to be collected for copies while the court proceedings continue? Is it redistributed to the authors?

[Wanda Noel]

No, it's paid to Access Copyright.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Can Access Copyright distribute the money, or does it need to keep it until the matter is settled in court?

[Wanda Noel]

I can't answer that because I don't know what the internal accounting rules are in that corporation.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

If I understand correctly, this situation penalizes authors, since the money has to be kept aside for the time being, given that you have launched another appeal.

I have to stop there, because I promised my colleague I would leave him some time.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

I'm going to continue with the answer to the question.

Thank you for being here.

Your current appeal from the Federal Court of Appeal, which found that the tariff, the rate, was in fact correct, has led you to talk about more than just money. You've said that this is not about money. Your appeal suggests that the current law of interpretation of fair dealing is “confusing and unclear”.

Am I to take it that the six-step test of the Supreme Court of Canada in CCH is not acceptable? Are you looking for something free here that you wouldn't otherwise get, say, in snow-plowing contracts or looking for free computers? I'm confused by the position taken by your organization. It sounds to me that you would prefer to obtain things for free that would otherwise respect some of the property rights that Mr. Fast alluded to earlier.

[Ramona Jennex]

That was the misconception. We're not asking for anything for free. The education system, the sector, pays for licences and copyright, and will continue to do so. What we're asking for with these amendments is to have things clarified. There's a silence--

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

I'm sorry to interrupt you, because we probably just have seconds.

Are the factors enumerated in CCH sufficient? You're looking for fairness here, but it seems to me it's already well defined. Are you quibbling with that decision? If you are not quibbling with that decision, I'm trying to find out why you're appealing a decision with the Federal Court of Appeal.

[Ramona Jennex]

I will have Wanda answer that question.

[Wanda Noel]

We are asking the Supreme Court to interpret the second step in the CCH case on what is fair, using those six factors. The Federal Court of Appeal has established a hard and fast rule that a teacher who copies for students in his or her class--it's not fair, period. We think, as a matter of public policy, that's not in keeping with the spirit.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

So you say there's no clarity, that CCH does not provide you the clarity you're looking for.

[Wanda Noel]

Exactly.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Thank you.

[The Chair, Conservative, Gord Brown]

Thank you very much.

Sorry, we have to move on.

Monsieur Cardin.

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you, Mr. Chair.

Good morning, and welcome to the committee.

You know that we place a high value on protecting copyright. We would have loved to see legislation passed that would protect copyright and also meet the needs of the public and education. Unfortunately, the government has brought in such a bad budget that we will not be able to see our work through to the end.

If I am correct, you mentioned in your remarks that nearly $1 billion is spent in Canada for copyright and licences of all sorts.

[Ramona Jennex]

Yes, that is correct.

I'll have Rosalind expand upon that.

[Rosalind Penfound]

On the reference I made earlier, in our estimation it's probably in the vicinity of $1 billion across Canada. That would include what the educational sector would spend on either buying a work outright--whether it be a book, a movie, or a piece of art--or paying for the use of one of those things.

[Serge Cardin, Bloc, Sherbrooke, QC]

As my colleague said earlier, the Quebec National Assembly is opposed to Bill C-32 as it was presented to the House of Commons. National Assembly members are concerned that authors and creators will suffer a loss of income.

You mentioned that your organization has an open mind on this issue and that there were discussions with Quebec.

In your opinion, is the Quebec Ministry of Education wrong in thinking that creators and authors would lose significant income?

[Ramona Jennex]

I feel there's a misconception about a loss of revenue for authors and for the creative community. What we, the ministers of education from CMEC, are seeking is to have the amendments in here so that there's clarification. This will not affect any of the revenues that any of our creative people will receive. They would stay the same. There's no loss of income in this.

We're asking for this for reasons of clarity. At this point, there's no clarity about what teachers and professors can do within their classrooms. We also have to look at what students can and cannot use in their assignments and reports. So that's what we're asking for.