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

[The Chair, Conservative, Gord Brown]

Thank you.

We'll move to the Bloc Québécois.

Ms. Lavallée, you have seven minutes.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you, Mr. Chairman.

As you were moving quickly through your presentation, I must admit I didn't see how this bill could benefit artists and creators of artistic content. This bill contains 17 new exceptions. In French, it's called the Loi sur le droit d'auteur. That suggests that it addresses the rights of authors and content creators. In English, however, it's called copyright. That suggests more the right to make copies.

The presentation made earlier by the Minister of Industry suggests to us—and our reading of the bill only reinforces that feeling—that with these 17 new exceptions to the rights of authors, the bill is moving more in the direction of providing copying rights, as opposed to protecting authors' rights.

Other than the fact that photographers will now have rights, what benefits does this bill provide to artists?

[Jean-Pierre Blais]

We could have a lengthy debate about the difference between the terms “droit d'auteur” and “copyright”. I--

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

We can talk about history and philosophy, if you like. I could also quote John Locke.

[Jean-Pierre Blais]

While there may be differences, as a result of international treaties, the main schools of thought tend to agree now. Even in countries that apply copyright, more rights are now part of the standards.

In terms of the specific benefits the bill would have for creators, there is no doubt the media have paid less attention to them. However, all the new rights are there, including the making available right, the right--

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

What is the making available right? Would you tell me which clause we're talking about; that will help.

[Jean-Pierre Blais]

Yes. The clauses are 3, 9 and 11. The distribution right is dealt with in clause 4; the reproduction right for performers is in clause 9; the increased term of protection for sound recordings is in clause 17; moral rights for performers are in clause 10 and protection of digital watermarks and other information measures dealing with rights management are in clause 47. I would also mention clause 18, which deals with enablers, and clause 58, which talks about the five-year review.

In my opinion, all of these items very much promote creation. Also, somewhat counter-intuitively, I should mention clause 22, which deals with user-generated non-commercial content. Nowadays, users can sometimes be creators. So, there is a different category of creators.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I guess you're talking about the “YouTube exception”?

[Jean-Pierre Blais]

Yes.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

So, you're taking rights away from artists and giving them to users, and you see this as a new benefit to artists?

[Jean-Pierre Blais]

That's why I was saying that, sometimes, new artists and creators develop content within that environment. For them, it is a benefit. I understand your viewpoint, which is that for some artists this could be seen as a loss--

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Not just for some artists, for all artists.

[Jean-Pierre Blais]

For others, however, it is seen as an advantage. It's a question of balance.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Some people may not understand our jargon. So, I would just like to clarify that what is known as the “YouTube exception” refers to the provision that allows any user to put any kind of music or artistic work on the Internet for their own purposes, without being required to secure the authorization of the rights holder or pay royalties. Do you see that as a benefit to artists?

[Jean-Pierre Blais]

First of all, Ms. Lavallée--

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I'll look at the other ones, but they're all the same--

[Jean-Pierre Blais]

I understand your views on this, but this provision is not as radical as you have described it. There are some restrictions: it cannot be for commercial purposes and the person has to have secured the content legally. The clause sets out a whole series of restrictions. It isn't a free-for-all. There are limitations on use for private purposes that do not affect the commercial value, for users.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

But that is what is going to allow people to create new hybrid works that they can boast about. We know how the web works. A lot of people do this more for the glory than for the money. And if you connect this to other clauses in the bill, it's clear that, ultimately, the artists are the ones who lose out. The bill contains 17 new exceptions, which means 17 sources of lost rights for creators of artistic content.

I have some other items to address with you. I would like to talk about education. The exemption for education purposes is difficult to accept. It will take $40 million away from artists, rights holders and copyright owners all across Canada. It represents $11 million in Quebec alone. The current system is working very well. We know that the annual budget for the education sector in Canada, in educational institutions as we know them, is $72 billion. So, $40 million is not a large amount of money in comparison. And yet, it would guarantee that creators receive royalties for the use of their work in educational institutions.

I'd like to ask you to explain your rationale for including this new exception, which comes totally out of the blue, in my opinion. Under that exception, the educational sector will now be an open bar in terms of copyright. Education stakeholders will be able to use whatever play, music CD, or book they feel like, and they will be able to make photocopies and distribute them. The fact is there will be no fees for the educational sector. Between you and me, this is not a very good lesson to be giving our children in terms of raising their awareness raising and instilling respect for copyright.

I really wonder how you can possibly justify requiring creators to provide their works free of charge to the educational sector. Their contribution is absolutely critical. It's part of education. I'm talking about artistic works, but I imagine that this also applies to scientific works. Teachers, principals, janitors, suppliers of computers, pencils, desks and so on all receive compensation and are paid.

[The Chair, Conservative, Gord Brown]

If we could get an answer on that, please, that will have to end that round.

[John Connell]

Perhaps I could answer that question.

First, fair dealing currently is an essential part of copyright law in Canada, and this is very much recognized by the Supreme Court. There are specific purposes right now in the Copyright Act for which fair dealing exists, and it includes, for example, research, private study, criticism.

The proposal is to extend it to education right now, but in a way that is not open-ended. Right now, for example, fair dealing in Canada is what permits a doctoral student to copy articles for published research, a writer to copy chapters of a borrowed book--limited uses like that. That continues to be the intent in extending fair dealing to education.

There are particular Supreme Court tests that will limit this. It's called fair dealing for a reason, and it has to be fair, so in no way is it to undermine the livelihood or the value of the creator's work; it's instead to permit particular constrained uses within structured educational context for purposes of education. So I think we can have some back and forth on what it actually allows.

There are the educational exceptions themselves, again, which are very limited. For example, on the use of material posted to the Internet, the creator will still have the right to put a digital lock on that material if he doesn't want it used; moreover, he can post something on the site that you don't want the material used either. So again it goes to the balance in the bill. It's trying to strike a balance between the interests of creators but also of educators, who are really trying to do their best to teach classes and use material that is publicly available in a balanced way.

[The Chair, Conservative, Gord Brown]

Thank you very much.

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

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

Thank you very much.

I just want to follow up on what one of my colleagues asked earlier, whether or not the digital lock provisions trump education rights. You were very clear that they do.

I am surprised that the government has taken this position, given our international obligations, particularly under the WIPO treaties. If you look at article 10 of the WIPO treaty, it is very clear that limitations, such as technological protection measures, may be supported, as long as they “do not conflict with a normal exploitation of the work”.

In fact, WIPO, the Berne Convention, and the WCT treaty have defined the rights that exist within the non-digital world as rights that continue on. And technological protection measures are not rights within themselves, but are enforcement measures for rights.

So have you decided that we would do this as a made-in-Canada solution, that the rights for technological protection measures would override the rights citizens would otherwise have?

[Jean-Pierre Blais]

The WCT and WPPT require contracting parties to provide adequate legal protection and effective legal remedies.

You asked me that question the last time I appeared here. No, actually, I was before the heritage committee.

But there is a difference of opinion in academia as to what is actually required to meet the test. We know that Professor Geist has a view and Professor Samuelson at Berkeley does too, but there are others who say that, according to the standard, it has to be adequate and effective. That extends to what the government is proposing in this particular legislation.

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

Thank you.

I wrote in July asking for a legal opinion on this that you would get from WIPO. I never heard back.

It seems to me that a legal opinion would clarify the situation for us. For example, in an analysis of the WIPO treaties of 1996, by Reinbothe and Von Lewinski, it says very clearly that the world copyright treaty:

contains no obligation to protect technological measures in areas...where limitations and exceptions to the rights exist under domestic law and have thus permitted by law the use of the protected works.

The language is very clear in article 10. So have you vetted this to say that this is what we are obligated to do, or is this a made-in-Canada solution that is now out of step with the United States and many of our WIPO-compliant countries?

[Jean-Pierre Blais]

I wouldn't agree with the statement that it is out of step with our trading partners and other WIPO members. There is some flexibility in how countries can implement the treaties.

With respect to a legal opinion, I apologize if the department somehow was involved in not responding to a letter. I was not aware of that, but we cannot provide you, unfortunately, with legal opinions directly. The opinions that we would get, unfortunately, are privileged, and we would not be able to share them with you. That, of course, is a challenge for you. But I'm sure others could probably provide you a solution to that.