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.
December 1st, 2010 / 4:45 p.m.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Thank you, Mr. Chair.
Thank you to the witnesses for being here today. It's a good start to our hearing from witnesses.
I'm going to start with Mr. Geist. This is just a quick question before I get into the theme of my other questions.
Just for the record, I believe you're a creator who benefits from the economy for your own work. Is that correct? Can you explain how that might work for you personally, as a creator?
4:50 p.m.
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
Sure, absolutely.
As do many academics, I write and I publish. This book is one example, but there are a number of others.
I'm practising what I'm preaching in the sense that the approach I take is to have this book available in print form and also to have it available free to download through a Creative Commons licence. Our publisher--a mainstream legal publisher, Irwin Law--has found that it's actually a viable commercial model to have the book available for purchase as well as available for free download. They find they actually are in a position to sell more books because they're adopting that open model, and that would be true, I think, for a growing number of people.
What we're talking about is a range of different models. Some of them can be closed and some of them can be open. All of them, at the end of the day, still respect copyright, and certainly I do with some of the choices that I make with my own writing.
4:50 p.m.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
All right. I imagine that the important thing is that you, as the creator, are free to choose whether you offer it up for free or whether you charge for it and can recognize some revenue from it.
4:50 p.m.
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
It's absolutely essential that creators get to make those choices, but copyright also sets some limits on some of those choices—limits in the sense that there are exceptions. There are user rights that I, as a creator, don't have the right to stop someone from exercising. That's what that balance is all about. Of course I get to choose the business model and I get to choose the publisher that I use. I get to choose a range of different things, but at the same time, once someone has purchased this work or has accessed this work in an appropriate fashion, they have a range of rights that kick in as well, so when we're talking about striking an appropriate balance within copyright, that balance also includes respecting both the creators, who are creating, and at the same time the rights that the users have, and the limitations, at times, that exist for some of those creative rights.
4:50 p.m.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
All right.
I'm going to transition a little bit here. We've had more submissions and meetings on this piece of legislation than virtually anything any of us have experienced. There has been much positive commentary, but I suspect that what we're going to hear from witnesses when they come before the committee is what they would change.
I'm interested in hearing succinctly what you like about this bill. What are the best aspects, the most important positive changes in this piece of legislation?
I'll start with Mr. Sookman and move from right to left, in this case. If you could be fairly succinct, that would be great.
4:50 p.m.
Partner, McCarthy Tétrault, Co-Chair of Technology Law Group, As an Individual
Thank you, Mr. Lake. I appreciate it.
The first thing to mention is the fact that we have a bill and we're at the committee. It really is essential for the Canadian economy that we move forward with this bill and get something that can be passed. I can't underestimate how important it is for Canadian business, Canadian jobs, and Canadians who want to establish new business models and go forward, so the fact that we're doing this is good in itself. The bill is a start to that.
In terms of the provisions, there are a number of them that I'll mention first. First, the fact that we're implementing the WIPO treaties is a very positive development. There are some who have said the WIPO treaties are outdated; that is not the case at all. Those are forward-looking treaties. They are being used successfully by those of our trading partners who have implemented them.
The technological protection measure provisions are absolutely essential for underlining new business models that exist around the world. They simply cannot be undertaken without legal protection for TPMs.
The other provision I'll mention, simply because of time, is enablement. I think the presence of that will send a clear signal that pirate intermediaries in Canada cannot stay here. This is not a place where these wealth destroyers will be welcome. Assuming those are tweaked appropriately, this is a very important aspect of the legislation.
4:50 p.m.
Conservative
4:50 p.m.
Professor of Intellectual Property, Osgoode Hall Law School, York University, As an Individual
I welcome that question.
I like where we are in the process and that we are here having an open discussion on important issues.
I also like the way the government shows in the bill a true struggle to achieve balance. At least the struggling is evident from the different provisions, and it's clear from the bill.
As well, photographers are given the same rights as other creators. There are also more rights for performers, and an exception for persons with perceptual disabilities, so I like those aspects.
4:50 p.m.
Conservative
4:50 p.m.
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
I'm also happy that we're here at this point in time. We're all in agreement there.
I think the best provisions are the ones that genuinely try to strike a compromise, which becomes so essential in copyright. I think we see it in the Internet service provider provisions with the notice-and-notice approach. I think we see it with respect to fair dealing. I think we see it on statutory damages when we target the clear cases of commercial piracy and have very tough penalties associated with that while at the same time recognizing that multi-million-dollar lawsuits against individuals make no sense whatsoever.
The places I wish I could say the bill were better, of course, relate to both the digital locks and those new consumer provisions, because I think that in a sense the bill gives on the one hand and takes away on the other hand. It's certainly appropriate, I think, to move in the direction of things like format shifting, time shifting, and backup copying, but to make all of those conditional on a digital lock is to give on the one hand and immediately to take away on the other hand.
4:55 p.m.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Unfortunately my time is going to be short, so I don't know if all of you will get a chance to answer this one, but I'll start with Mr. Sookman again.
Is there anything you've heard from the other witnesses at the committee—and I'm not looking for a fist fight here, or anything like that—that you maybe don't agree with?
Perhaps the others will get time later in the committee meeting to answer that as well.
4:55 p.m.
Partner, McCarthy Tétrault, Co-Chair of Technology Law Group, As an Individual
Thank you, Mr. Lake.
I'd like to respond to a couple of comments that Professor Geist made in response to Mr. Angus's question. I do agree with the notion that we need very clear framework rules, but I fundamentally disagree about what those rules are. As well, I do not believe that a person who buys a product subject to a digital lock should necessarily simply have the right to circumvent that digital lock, and I don't think using the “trumping” language is actually appropriate.
The TPMs on products are there to support business models, and if you look around the world, those business models are subscription business models, rent-to-own business models, and owning business models that cannot be sustained without legal protection for TPMs. If a person could simply acquire a product under various terms and then circumvent the TPM, there would simply be no incentive to launch those products, or, if they were launched, there is no reason to think they'd be provided at different price points that would be beneficial to consumers. Rather, what you'd have is businesses thinking that they had to price a product for the maximum possible use, which would be anti-consumer.
The last point I'll make on that, if I may, Mr. Lake, is that this isn't only about consumers. This is also about Canadian businesses and jobs, and every time an uncompensated copy is made, as Professor Geist would advocate, that's somebody whose pocket is being picked or whose job is being lost. That kind of policy, I submit, is a real problem.
4:55 p.m.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
I think Mr. Geist is going to want to comment on that, but I think the chair is going to cut him off.
Mr. Del Mastro will give you time, Mr. Geist.
4:55 p.m.
Conservative
The Chair Conservative Gord Brown
Okay. Thank you very much.
We're going to move now to the Liberal Party. Mr. McTeague, you have five minutes.
4:55 p.m.
Liberal
Dan McTeague Liberal Pickering—Scarborough East, ON
Thank you, Chair, and thank you, witnesses, for being here. We've long anticipated your arrival--in my case, at least, it's been since 2005. It's not as long as Mr. Geist, but certainly I have taken an interest in this area.
Recently there has been news about The Pirate Bay, the world's largest illegal peer-to-peer file-sharing BitTorrent website. You'll find this is a theme I raised with officials last week.
The Pirate Bay recently lost an appeal of a copyright conviction in Sweden. The court, as you know, found that “The Pirate Bay has facilitated illegal file sharing in a way that results in criminal liability for those who run the service”. The three site founders were sentenced to prison and fined some $6.5 million U.S., I believe.
In 2008, prosecutors said that The Pirate Bay had 2.5 million registered users, peaking at more than 10 million users simultaneously downloading files, and was making $4 million a year from site advertising. It's clear that the site was, if you will, a high-volume and very lucrative business.
I'd like to ask all three of you, if I could, how you see Bill C-32stopping, if indeed it does at all, sites similar to The Pirate Bay--sites that facilitate the mass distribution of unauthorized copies of works--from being able to operate here in Canada.
I'll start with you, Mr. Sookman, and work my way back.
4:55 p.m.
Partner, McCarthy Tétrault, Co-Chair of Technology Law Group, As an Individual
Thank you very much, Mr. McTeague.
That's a very good question. I think the enablement provision would be one of those tools that would help achieve a similar result in Canada. If you look at The Pirate Bay, The Pirate Bay is not directly liable for infringement. What The Pirate Bay does is facilitate infringement by others. The important point is that with a little tweaking the bill will, hopefully, have sufficient teeth to put a Pirate Bay out of business in similar situations in Canada.
The second thing is that in the case of The Pirate Bay, the “making available” right was also used to help prove the fact that files were being shared, and that was helpful.
Of course, in a Canadian situation we have problems similar to The Pirate Bay. We have isoHunt, which is the second-largest BitTorrent site in the world. It is the largest in Canada. We have seven other BitTorrent sites operating in Canada, and many leech sites and other sites. The Pirate Bay is a good litmus case to think about. We have those problems in Canada that need to be addressed, and the enablement provision would very much help to do that.
5 p.m.
Liberal
5 p.m.
Professor of Intellectual Property, Osgoode Hall Law School, York University, As an Individual
Currently we have a good signal in the bill, a policy framework, to signal against that type of conduct, that infringing behaviour. It leaves it very much in the hands of litigation, in a sense, to resolve exactly what is meant by a service designed primarily to enable acts of infringement. We have case law there, and I'm hopeful that the law will be respected.
5 p.m.
Liberal
Dan McTeague Liberal Pickering—Scarborough East, ON
Thank you.
What would be your comment, Mr. Geist?
5 p.m.
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
I think that the enablement provision is helpful in that regard. I don't have a problem with it. I think it needs to ensure that we don't have unintended consequences. At the same time, if those are tools that can help in terms of targeting some of the bad actors, I think that's just fine. I think it's appropriate.
I do think, however, that it is important to recognize that some of those same tools already exist within the Copyright Act. One of the problems we have faced has been the reluctance of some of the rights holders to go after those sites in the first place. There have been a couple of instances in which they have targeted Canadian-based BitTorrent sites, and those sites have stopped. There is one case now involving isoHunt. It's quite clear that those groups would be quite anxious to, or are prepared to, make the argument that Canadian copyright law does not, as it currently stands today, permit certain kinds of authorization of infringement activities.
It's not just about MPs crafting laws to give new tools. It's also about rights holders exercising some of those rights against those particular bad actors, recognizing that what we want to target are the commercial cases of infringement and that by and large we want to leave the non-commercial individual personal property issues aside.
5 p.m.
Liberal
Dan McTeague Liberal Pickering—Scarborough East, ON
I get that, Mr. Geist. It's okay that people should take these matters to court and go through the process of standing up for their rights, but it would appear that the very existence of an isoHunt in Canada is problematic and is very much the result of what appears to be a legislative holiday for companies and other BitTorrent sites.
Let me go to the question of statutory damages, because I think we raised this a little earlier. I think a number of you had something to say. In your case, Mr. Geist, you suggested that we propose a $5000 cap on liability, and I think your quote was that it represents a good compromise. Others have called this cap something that is in fact a licence to steal.
I'm wondering--and this is somewhat connected to the previous question--if what you have here is a situation that might actually encourage people. They could say that the one-lump-sum approach allows them to do it severally, manifestly, and as often as they want. They'll take the risk on that $5000 because they can probably make a lot more money commercially, or they'll do it for other reasons, such as notoriety.
I'm worried about the signal that comment might send to Canadians and file sharers, which is that this kind of low-risk approach to the probability of conviction, as well as a low fine, would defeat the very purpose of ensuring the balance that you claim this bill has.
5 p.m.
Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual
The quick answer raises at least two points. First, statutory damages are relatively rare. Most countries don't have them. We're generally one of the exceptions rather than the rule.
I think this notion that $5,000 is going to be viewed by the average Canadian as a licence to steal is completely out of touch with reality. For most Canadians, $5,000 is an awful lot of money. If anything is a dangerous signal, it is a potential multi-million-dollar liability for individuals for non-commercial infringement. That's what we have in the United States right now. There are more than 30,000 cases in which individuals have faced the prospect of a multi-million-dollar liability--losing their homes, losing all of their savings--for sharing a few songs. I think that's a fundamentally wrong, unjust message to many individuals. We want laws that target those who enable the infringement. We have penalties that are stronger, in terms of financial penalties, and statutory damages that are larger than those of any other country in the world, because many of them don't even have statutory damages.
To send a message that an individual Canadian is potentially on the hook for millions of dollars is the wrong message, and to suggest that somehow $5,000 is just pocket change and won't deter me from sharing files to my heart's content is out of touch with the reality for most Canadians, who would look at $5,000 as being an awfully expensive penalty to have to pay.
5:05 p.m.
Conservative
5:05 p.m.
Liberal