I would like to thank the committee for inviting me to appear today to provide input on Bill C-32.
Before starting my remarks, I would like to give you some background. I'm not telling you these things to boast, but because I understand some have expressed concern that I have one or two clients implicated in this legislation and that their views are shaping my perspective. This is not the case. I'm a lawyer who specializes in this area. I have worked and taught in it for many years. I'm a partner with the law firm McCarthy Tétrault and the former head of its intellectual property group. I'm an adjunct professor of intellectual property at Osgoode Hall Law School. I'm the author of five books, including the leading treatise on computer and Internet law. I'm a member of numerous committees, including those in the IP area. My involvement in copyright matters for creators, users, and intermediaries spans decades of practice. I've appeared in three precedent-setting Supreme Court of Canada cases, including CCH, which modernized fair dealing in Canada, and the Tariff 22 case, which examined the liability of ISPs. I appeared for the ISPs opposite a rights holder, SOCAN.
I'm here today in my personal capacity and am not representing my clients.
In introducing this bill, the government made it clear that its purpose was to enable Canada to have copyright legislation that would benefit the Canadian marketplace. It was drafted to create framework laws and to enable Canada to be a leader in the digital economy in line with our trading partners. I support these objectives. There are, however, areas where the bill will have unintended consequences that are inconsistent with those objectives. I hope to assist members of this committee in understanding these issues, many of which are technical in nature. In the limited time I have to address the issues, I would like to focus on several examples of technical problems that need to be fixed.
The government has said that the bill will give owners stronger legal tools to go after online pirates that facilitate copyright infringement. Minister Clement said that the bill goes after the bad guys, the wealth destroyers. To address this problem, the bill has a new section on the enabling of infringement. A technical problem is that as drafted, the section is likely ineffective, because it applies only to services designed primarily to enable acts of infringement. Most file-sharing sites, including peer-to-peer, BitTorrent, and pirate-hosting sites, are not designed primarily to enable acts of infringement but to facilitate the sharing of information and files.
There are two other technical problems. The government's intention is that ISPs should be exempt from liability when they act strictly as intermediaries. On the other hand, Bill C-32 is intended to ensure that those who enable infringement will not benefit from the ISP exceptions. However, the drafting does not make this clear. Only two out of the four exceptions expressly say this. Based on the differences in wording, a court might well conclude that a pirate-hosting site gets an ISP exception even when it is liable for enablement. This could not be anybody's intent.
Lastly, the bill exempts commercial enablers, the wealth destroyers, from being liable for statutory damages even when they facilitate infringement for a commercial purpose. This can't be anybody's intention.
The bill also contains a new exception that would let individuals take existing content and use it to create user-generated content. The intent is to permit an individual to use content to make a home video or create a mashup of video clips. This is an exception that to my knowledge does not exist anywhere else in the world. From a technical drafting perspective, the exception is so widely cast that it would most likely violate Canada's WTO TRIPS obligations. TRIPS mandates that exceptions must be subject to what is known internationally as the three-step test. The exception, as drafted, would permit individuals to do almost anything that the author could do with his or her work— including creating translations, sequels, or other derivative works—and publish the result on the Internet. They could also create collective works or compilations of works, such as the best of a TV series or their favourite iPod playlist, and post those on the Internet, and they can do a lot more. The result is that the author loses significant control over the uses of his or her work, a fundamental copyright concept.
Over and above this, there could be significant economic consequences to the author. The intention is to permit uses that would have no effect on the market for the work; however, the drafting permits aggregate effects on the market for the work, which would be very damaging and substantial.
Also, the individual's use of the UGC work must be non-commercial. A website operator can charge for disseminating the UGC work, but the author gets none of the remuneration. They would, however, in other countries that don't have this exception, countries that have let the markets solve the problem.
There are other technical issues with the bill that also need addressing, but, as the chair has pointed out, I'm out of time.
I would like to thank the committee again for inviting me to appear. I look forward to answering your questions.
Thank you.