Bill C-32 (40th Parliament, 3rd Session) Committee on Nov. 25th, 2010

[Jean-Pierre Blais]

I was mentioning the related clauses. The deck is not comprehensive; it is only meant to support my presentation.

Is that all right?

[The Chair, Conservative, Gord Brown]

Okay, copies of both decks in both official languages.

Carry on.

[Jean-Pierre Blais]

I'm moving on now to page 5.

This bill helps those who create content to protect their works. If you want to write down the clause number, clause 18, it provides new provisions to target online enablers.

At clause 47, there is the “notice and notice” regime to ensure ISPs will help curb piracy by requiring them to notify subscribers when copyright owners detect infringing activities.

As well, it recognizes the interests of consumers and Canadians more broadly. For instance, clause 22 provides for user-generated content as well as time shifting, format shifting, and backup copies.

There are as well new measures for the perceptually disabled, at clauses 36 and 37.

Canadians must also not face unreasonable penalties for minor infringements of copyright through amendments provided for at clause 46.

And parody and satire for fair dealing are being proposed at clause 21.

John.

[John Connell]

Turning to page 7, one theme that frequently emerged during the copyright consultations was technological neutrality. The bill includes provisions that are technologically neutral and reflect the reality of an ever-evolving media and technological landscape.

For consumers, the bill includes private-use exceptions that are not tied to a specific technology. It will ensure that businesses have the freedom to introduce innovative products and services, like the network PVR.

The bill includes clear exceptions that permit educational institutions and libraries to make better use of new digital technologies. For teachers and students, this includes an exception that will allow for the copying and communication, for educational purposes, of material publicly available on the Internet and not protected by a technological protection measure. It also includes an exception that will allow for the use of innovative technologies such as Smart Boards in classrooms, by extending the scope of current reproduction for instruction beyond specific media such as dry erase boards and flip charts.

Thirdly, at the same time, to ensure creators' ability to advance new digital business models, the bill provides copyright owners with remedies against those who circumvent technological protection measures or digital locks applied online or on CDs or DVDs to prevent unauthorized access to copying of their digital material.

Finally, the bill, as the ministers mentioned this morning, includes a requirement for a review of the Copyright Act by Parliament every five years to ensure it remains responsive to a changing environment.

This concludes our overview of Bill C-32.

Jean-Pierre, Colette, Barbara, and I would now like to answer your questions.

[The Chair, Conservative, Gord Brown]

You did miss page 6. Was there a reason that was omitted? We'll give you another minute or two to go over that, please.

[John Connell]

Okay. My apologies.

On education...emphasize that a skilled and educated workforce will be a vital part of the economy of tomorrow, and that all countries are investing in education and competing, using it as a tool for economic development. This bill introduced new measures aimed at enriching the educational experience and facilitating use of the latest technologies. It includes an extension of the change to the provisions for fair dealing that will enable the use of copyrighted materials for the purchase of education. Students, particularly those in remote locations, will benefit from new exceptions that accommodate the use of technology for live or on-demand learning. Educational institutions with licences to photocopy educational material will now be able to make use of this material in digital copies of course packs.

The bill supports business innovation for technology companies. For example, it will include measures to enable activities related to reverse engineering for software interoperability, security testing, and encryption research, including the circumvention of TPMs for these purposes.

Finally, the bill will foster the growth of the Internet and support the sharing of ideas online. The bill will grant Internet service providers greater limited ability in situations where, without their knowledge, their subscribers are infringing copyright by using their networks. This is the so-called “safe harbour” provision.

[The Chair, Conservative, Gord Brown]

All right. Thank you very much.

We'll now move to questions. For the first round of questions, which will be for seven minutes, we have from the Liberal Party, Mr. McTeague.

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

Thank you, Chair.

Thank you, witnesses, for being here.

I want to save these for the minister, but I'm glad, Mr. Connell, you were able to provide number 6, because it's that area of the enabling and the safe harbours section of this legislation that I'm most interested in.

I understand the bill is supposed to of course target those who enable and profit from massive online copyright infringement. I'm not sure it makes clear that this also includes hosting services. I really need to think that we would not want to have that avoided here, since they're meant, obviously, to deal with the wider definition of the enablers of those who may promote infringement.

I don't want to assume the government's intention, but I take it that the legislation's intention is that pirate host facilities, enablers, should also be captured here and then should not be able to make claims of being protected or exempted under the safe harbour provisions of the act. My sense is that this would obviously be very inconsistent with the bill.

Can you assure the committee that the legislation in fact is intended to capture pirate host enablers as well?

[Jean-Pierre Blais]

This enabling provision is quite unique. It may be the first one in the world ever proposed. It has garnered a lot of interest around the world. It's actually targeting the bad guys, those who are doing the enabling and allowing peer-to-peer networks to operate to the detriment of copyright owners.

We are aware that there are people out there who are suggesting that the drafting isn't quite right with respect to hosting. There is an intention to examine that more closely.

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

Yes, if I'm using a platform that has as its intention to provide a means by which I can enable infringement, it seems to me that we may have lost a very important and critical definition.

[Jean-Pierre Blais]

That was the policy intent.

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

We're going to have to tighten that.

I'll move, because I do want to allow my colleague, Mr. Rodriguez...I know that a few of us have quite a few questions.

I was looking at an Industry Canada fact sheet, Mr. Connell and Madam Downie, that states that it's the intent of C-32 to send a clear message. The wording I have here is:

Copyright infringement is unacceptable. It recognizes that the most effective way to stop online copyright infringement is to target those who enable and profit from the infringements of others. By allowing copyright owners to pursue these “enablers”, such as illegal peer-to-peer file sharing sites, this bill supports the development of significant legitimate markets for downloading and streaming in Canada.

I take it this is also a position held by Heritage Canada?

[Jean-Pierre Blais]

Yes.

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

Okay, so it's consistent.

[Jean-Pierre Blais]

There's only one government position.

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

I understand that, but I want to make sure it's both. I see it from the Department of Industry, and I want to make sure that we're on the same page.

The way it's drafted, only services, and I'm going to quote this, “designed primarily to enable acts of copyright infringement”...those would be liable for infringement.

We know that there are peer-to-peer sites—Mr. Blais, you referred to this a little earlier—such as BitTorrent index sites, which are not primarily designed to enable acts of infringement. My view is that they're designed to be content neutral. The reality, however, is that they are primarily operated in a way that enables substantial amounts of infringement. In some instances, 90%, 95%, 98% of downloads from these services are in fact infringing.

I'm wondering if the legislation or the wording “designed primarily to enable...infringement” should also include “which induce infringement”. That's an add-on to the question I had earlier on hosting.

These are early observations, but I want to signal to you the concern that we have on our side that some of the language may not capture the intent that you're seeking. We may need to tighten the wording.

Comments?

[Jean-Pierre Blais]

You correctly described the intent behind it. The drafting of a provision like this involves a lot of lawyers. If you wish to improve the drafting of it to get to the policy intent...it is the intent to do it. But it's hard for us to react without seeing specific language and what it would do.

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

I have a feeling this is why we're going to be taking a bit of time to look at the legislation.

I am going to cede my time to Mr. Garneau.

[The Chair, Conservative, Gord Brown]

Okay.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I would like to ask for clarification on the issue of digital locks and fair dealing.

Would you say that in this bill digital locks trump everything? For example, if somebody wants to produce educational materials under fair dealing but they have digital locks on them, would the person be prevented from doing so?

[Jean-Pierre Blais]

The provisions with respect to time sharing and format sharing provide that you can't otherwise break or circumvent a TPM. However, one has to remember that what I was referring to in clause 47, which deals with TPMs, is quite a long provision, and people focus a lot on the locks. But even within the legislation, there are numerous exceptions to when locks are effective. There is law enforcement, national security, interoperability, increase in research--

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Let me ask specifically about education. That's the one I brought up. Do digital locks trump the use of material, copyrighted material, for educational purposes under “fair dealing”?

[Jean-Pierre Blais]

In the bill, as drafted, the answer is yes.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Okay.

I have one last question. Do you intend or has there been any thought given to defining what constitutes education under “fair dealing”?

[Jean-Pierre Blais]

The bill does not define what education is. It relies on a case law that has, in various contexts, defined that. The bill does not define education per se.

I am aware that some stakeholders who will appear will raise issues related to that, and we're interested in seeing what their views are.