Evidence of meeting #5 for Bill C-32 (40th Parliament, 3rd Session) in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.
A recording is available from Parliament.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
Internet service providers always say that they are not responsible for the "tube" and that they should not have other obligations. Given their role, should they not be held further responsible?
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
Absolutely there should be responsibility, and I think the approach that the bill takes on notice and notice is one through which there is responsibility on the part of the ISP. It's one in which there are significant costs incurred by an ISP, but at the same time what it does is look at the experience in other jurisdictions and try to strike the appropriate balance so that there are remedies for rights holders and appropriate privacy and other protections for users.
Conservative
The Chair Conservative Gord Brown
Thank you very much.
We'll have to move on to Madam Lavallée. Vous disposez de sept minutes.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Thank you very much.
You talk about a so-called balanced bill, and I must admit that I fail completely to understand you. When we read it, we see that it sets out a good many exceptions. The Bloc Québécois, Quebec performers, a whole slew of organizations, that I could list for you, involved in culture or consumer rights, as well as the Barreau du Québec, find that this bill is unbalanced. Do you know why?
One of the reasons is that we analyse the issue differently. Our approach is not the same. In English, you talk about "copyright", in other words the right to copy. In French, and based upon our Quebec values, we talk about "droit d'auteur" and the "Loi sur le droit d'auteur", in other words an act dealing with the rights of authors. We are respectful of these rights. Every new exception included in the act is therefore for us a new infringement on the rights of authors. That makes a world of difference, in Quebec in particular, but especially in the arts community. This is an act the purpose of which is to defend their rights, but every time we include an exception, we take one of these rights away from them.
It is so much so the case that three measures contained in the bill will deprive creators of artistic content of $74.8 million. The non-modernization of copying for private use will take $13.8 million away from them. With regard to the exemption for education, I wish to tell you that non-respect of copyright is a very bad message to deliver to children and students. Indeed, because they are studying, they are authorized to not pay copyrights. I do not see how you are able to defend such a thing. Tomorrow morning, once the bill has been passed, we will be able to copy this beautiful book you have to our heart's content, using education as a cover. It could even apply to an automobile driving school.
In the case of the exception for education, we are talking about $40 million less, and in that of the abolition of ephemeral recording, the loss amounts to $21 million. Those three exceptions alone represent a $74.8 million reduction. The gentleman provided a very good description a little earlier of the "YouTube exception". It is indicated that it is for non-commercial use, but never before have consumers been granted user rights that do not even require the consent of the author.
The fact that statutory damages are capped at $20,000 in the case of musical works makes no sense at all. In other words, any individual wishing to steal a musical work simply has to find $20,000 and wait for charges to be laid. The digital lock, however, is a measure that a large enterprise truly needs, especially in the game software industry. But if a person circumvents a digital lock, he or she is subject to criminal sanctions of a fine of $1 million and a term of imprisonment of five years. Do you see the difference? When you infringe on rights relating to a musical work, the penalty is $20,000, but when you circumvent a digital lock, it is of $1 million. This provision of the bill is clearly advantageous for big business. It is a double standard.
This imbalance comes into play at several levels. Given that I wish to provide you some time to react—and, in any event, there will be a second round—, I will give you the floor right away.
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
Thanks. I would respond with two things. One is to reiterate the fact that the notion there are people out there who will be able to make any kind of copying and claim it's for educational purposes, and that it stops there, is fundamentally not what the bill says nor what the law is. The law says they can start with that, to claim that it's educational, but it will still be subject to a fairness analysis. In fact, I reiterate that the Federal Court of Appeal looked at this specific issue around educational copying this summer—areas where it was already included as a category—and determined that compensation was still due. This notion that all of the revenues disappear is fundamentally at odds with the law.
I'd also like to comment on this notion that any exception is anti-creator. With all due respect, I simply think that's not the case. Certainly we can well see that exceptions like parody and satire are designed specifically for creators; they are designed to ensure that those who engage in the creative process have the ability to do so without fear of lawsuits. The same is true for some of the other areas. Even in the UGC, the remix type of exception, we are talking about a new generation of creators, the people I think we want to embolden and allow to go ahead and create.
Sometimes the Copyright Act as currently constructed erects barriers to that creativity. Some of the exceptions we see within this legislation, as well as the digital locks, which themselves can be a major problem for creators in their desire to create, ultimately have to be addressed as well.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
With regard to the exception for education, officials from the departments of Canadian Heritage, Official Languages and Industry came before us this week and did not deny the fact that there is an exception for education. They told us that one of the things that will have to be done is define what we mean by the term "education".
Notwithstanding what you are telling us, they said that there is indeed an exception for education.
Professor of Intellectual Property, Osgoode Hall Law School, York University, As an Individual
To follow up on that, I would like to see—and this stems from my opening remarks—some clarity as to what we mean by education. It's a very broad term. Yes, we have research, private study, criticism, and review, but those have been subject to the test of case law. We are going to go back to the drawing board and now put the term “education” to the courts to decide when we could be doing so in this room.
December 1st, 2010 / 4:05 p.m.
Partner, McCarthy Tétrault, Co-Chair of Technology Law Group, As an Individual
Madame Lavallée, I certainly agree with a lot of your sentiment, particularly the sentiment that talks about droit d'auteur and how important that concept is in Quebec. Sometimes in English Canada we unfortunately don't perceive it that way. Your point is a very valid one, and the Bureau du droit d'auteur mentioned that point.
You can see that concept very significantly as it plays out in the UGC exception, where the fundamental concept of an author being able to control how the work is used, what it's used with, and what it's associated with, is absolutely fundamental. In this case this exception is not just about little mashups; it's about a lot more, which would have really important ramifications on droit d'auteur.
On your other point, I also agree that as the exceptions are drafted, it would lead to a lot of uncompensated copying, but the format shift, for example, is drafted in a broad enough way that it would permit people to side-load from other people's computers. That could not be intended. It would permit one person to copy their entire iPod or computer onto somebody else's computer, which again is not intended. The intention must be to copy only for the person's own private purposes, not for somebody else's private purposes.
Lastly, in relation to statutory damages, you raise a really good point about the interrelationship between statutory damages and behaviour. What this bill does with respect to statutory damages is tell people they can copy as much as they want onto their computer or onto their iPod. It doesn't matter how many times, because the most they're going to be liable for is $5,000. Once you're copying, why not copy as much as possible?
Our trading partners have tried to send signals indicating that this kind of behaviour is not appropriate. The statutory damages that we have give exactly the opposite message to consumers, which is that you don't need to buy legally. You might as well just load up, because if they catch you, there will be a cap.
Conservative
The Chair Conservative Gord Brown
Thank you very much.
Mr. Angus, we have about five minutes left. We're going to leave it to you if you wish to have us suspend now. Do you mind splitting your time?
Conservative
NDP
Charlie Angus NDP Timmins—James Bay, ON
Ms. D'Agostino, I was interested in your recommendation on fair dealing, but I have to admit that I wasn't really quite sure what it was.
The education right has been defined by the Supreme Court, so it would seem to me incumbent upon us to address the education right as defined by the Supreme Court within legislation, but to make it clear enough to prevent a corporation from doing training and saying that it's education or prevent a private for-profit company from saying that it's just for education. We should be able to find language that defines things so that we're not talking about people pillaging entire libraries and textbooks and saying that it's fair dealing.
What is the specific language that you would provide to us that would allow for that clarification?
Professor of Intellectual Property, Osgoode Hall Law School, York University, As an Individual
Well, it would leave some flexibility in the framework for the government through, essentially, regulation. We have established an entire process to formulate the exact specificity needs of what we mean by education.
For instance, one question I have is whether we include course packs for universities. That's something I'm still not clear on. There is also the example I raised about the school for English as a second language; I'm not clear on that either.
If we look at CCH and the six factors, in a sense I don't think the provision would be broadly interpreted, because there is a safety net with the CCH factors. At the same time, it's still a feeling I have and not a certainty. What I would like is a bit more certainty and a bit more evidence amassed to have a more concrete, evidence-based approach. That's why I'm not really comfortable with the way it is now. I think and I sense that there is something we should be doing. If we put in a term like that, I just don't know if it's going to really achieve what we're trying to get at. If there is something we should do, then maybe we should look at it a bit more carefully.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Okay. Thank you.
Mr. Geist, you and I were both at the event at McGill University at which Bruce Lehman, who wrote the DMCA legislation, spoke. Mr. Lehman shocked everybody, because he said he felt the DMCA had been a failure and urged Canada not to do what he had done.
Then he said something that I thought was very disturbing. He said he felt we were in somewhat of a post-copyright era, in that when millions of people just opt out of any respect for copyright, copyright has no place.
I personally don't believe that, but what concerns me in this bill is that people are going to do what they're going to do anyway. I've heard this from a number of people about the digital lock provision in proposed section 29.22's right to reproduce for private purposes unless there's a technological protection measure, and about proposed section 29.23 on time shifting unless there's a technological protection measure, and on education rights.
If people are ignoring the law, how do you enforce it? That's the question I've had: how do you force people to, for instance, destroy their class notes after 30 days? How do you tell them they can't keep a library? Once people see that as an irrelevant issue, then the whole legitimacy of copyright is undermined.
Do you believe it would be better for us to focus the bill so that there are clear rules about how copyright is enforced and how it's not enforced, so that if citizens have rights guaranteed under the bill, then those are their rights?
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
There are a couple of things there. First, if it's a citizen's right and we're going to agree that something like time shifting or format shifting is appropriate and ethical and that the law should reflect that, then I don't think it's appropriate to say that the right can simply disappear by virtue of the existence of a digital lock.
If it is a right and reflects the ethics that I think many of us have, then it's appropriate to record a television show or format-shift a video. If that is in fact the case, then the law ought to reflect it, and the notion that it can be lost by virtue of a digital lock is fundamentally wrong.
Let me speak, though, on the enforcement side for a second. The issue of enforcement is an important one, because I think that in many ways digital locks punish the good guys. Those who would seek to infringe, frankly, are going to infringe whether there's a lock there or not.
Those who will respect the lock provisions are educational institutions, teachers, and students doing assignments. At the very beginning, they sign ethics documents about what is appropriate and permitted behaviour and what is not. If you're a researcher and you're putting forward a grant application that may involve some circumvention, you can't apply for that grant, because it violates the law. Putting forward lock provisions that are inconsistent with the other sorts of balance that we already have in the non-digital world ultimately punishes those who are seeking to abide by the law.
The truth of the matter--and I think this is what Lehman was getting at--is that the experience in other countries that have implemented these rules is that the digital lock rules are by and large ignored by the pirates and followed by those who want to abide by the law. What we're doing here is punishing those people.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Do you agree with the suggestion that has been put forward by some academics that the creation of this two-tiered set of rights, with digital locks being able to override rights that are guaranteed in other parts of the Copyright Act, will lead to a constitutional challenge?
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
I think there's no question that we'll see a constitutional challenge. We've had papers from a number of academics who have made the case in an analysis of how copyright sits within our Constitution. The further away you get from copyright and the more you become more focused on what you can fundamentally do with your own property rights, the less this becomes about copyright per se.
When you have legislation that basically dictates what an individual can and cannot do with their own personal property—I'm not talking about someone who seeks to infringe, but about their own personal activity and their own personal property—and especially when we bring in things such as basic access controls, it doesn't sound to many people as though we're talking about copyright law at all anymore. It's now about personal property rights, and frankly, that's within the jurisdiction of the provinces, not the federal government.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Thank you.
Mr. Chair, how much time is there? I can stop now.
Conservative
The Chair Conservative Gord Brown
I can give you another minute, and then your round will be finished.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Perfect.
Mr. Sookman, you mentioned the issue of the broadcast mechanicals. I'm interested in the issue because we have within the bill certain compensation rights that were in existence and to which creators and authors were entitled. Now they're being told they don't have those rights. I find that a strange decision by the government.
I was interested in the recent Dutch Court of Appeal case. In this case somebody said that authors had the right to be compensated even for illegal downloads, because the Berne three-step test said that if there's a right to compensation, that right still exists. It can't be taken away.
Do you believe there is an obligation over prejudicing the rights of the artist if we have existing compensation regimes that are now being made null and void?
Partner, McCarthy Tétrault, Co-Chair of Technology Law Group, As an Individual
Thank you for the question, Mr. Angus.
I hope at a later point in time I get an opportunity to address the other part of your question, which Professor Geist dealt with, because I don't agree with that.
Concerning this situation, I believe that artists are losing revenues, as you've said. The broadcast mechanical is an example.
Is this a constitutional violation? I think the answer is clearly not. Parliament has control over how it legislates with respect to copyright and, in my view, even with respect to TPMs it certainly would have constitutional control under the way the Constitution Act has been construed. As long as it rounds out a scheme with respect to copyright, there would be constitutional authority. There's no doubt that TPMs are there.
With respect to the broadcast mechanical, it's a question of policy: is it good or bad? I think a lot of people didn't see this one coming, frankly. I certainly think the rights holders didn't see it coming. Parliament can do it if they want, but whether they ought to do it is another question.
Conservative
The Chair Conservative Gord Brown
Thank you very much. We're going to have to suspend now.
We will come back 15 minutes after the vote numbers are announced, with the indulgence of our witnesses. Thank you very much.
The meeting is suspended.
Conservative
The Chair Conservative Gord Brown
I call this meeting back to order.
In this first round we have one more seven-minute question period. We go to the Conservative Party.
Go ahead, Mr. Lake.