Thank you very much, Mr. Chairman.
My name is Ysolde Gendreau. I am a professor at the Faculty of Law, University of Montreal. However, I'm here today as president of ALAI Canada, which is the Canadian branch of the International Literary and Artistic Association, a body that was founded in 1878 for the promotion of authors' rights.
I will continue my presentation in French.
Because the ALAI is at the origin of the Berne Convention, I have come here today to talk to you about Bill C-32's compliance with international law and especially with the requirements of international law with respect to exemptions. Before talking about the exemptions, perhaps we should talk about the basic principle. I would first like to submit that a copyright act, whether it concerns copyright or droit d'auteur, represents a partnership between authors and distributors. From the time the first copyright legislation came into existence 300 years ago, Parliament has intervened to inform the distributors of works—at the time, they were printers and book stores—that they had to take authors into account in the compensation they obtained from the sale of their books. The role of Parliament is to provide a framework for this partnership and its evolution as new distributors arise.
In a relatively recent example, in 1954, the Federal Court—at the time, it was called the Exchequer Court of Canada—held that the retransmission of works by cable did not give rise to the payment of copyright royalties. In 1988, 34 years later, Parliament intervened and required cable companies to pay royalties to authors. I would like to point out that that intervention occurred at the time of a trade agreement with the United States.
It is by developing this partnership between authors and disseminators as technology evolves that we foster the technological neutrality of copyright. Exemptions to copyright mark the limits of this partnership because, otherwise, there might be no end. This partnership entails exemptions—as you know, since you have previously heard about this—at the international level. These exemptions are sublimated in what is called the three-step test under the Berne Convention and TRIPS, two instruments to which Canada is bound, and also in the WIPO treaties. There are certain special cases: no conflict with normal exploitation, no unreasonable prejudice to the legitimate interests of the authors/copyright owners.
I would like to submit a few examples of this found in Bill C-32, which, in ALAI's view, undermines the three-step principle, because these exceptions are too broad, because they are based on unrealistic conditions that, once again, make them too broad. Here we're talking about fair dealing for the purpose of education, the new section 29. We're talking about non-commercial user-generated content, private copying under section 29.22. We can add, of course, fixing for later listening or viewing. We can add back-up copies that are not limited to software and applied to all works under section 29.24.
The three-step test is what indicates that copyright and copyright holders have limits. This three-step test is not just a statement of prohibition. It provides for a solution to settle the cases of exceptions that might not meet the three-step test.
Why does it contain in itself this seed of a solution? Because the three-step test was designed in the 1960s, at a time when photocopying was on the rise. Copyright thinkers at the time viewed the increase in photocopying as a rise in mass use and foresaw that technology would continue along that path. What do we see today? We are indeed facing mass use of all kinds of media. They also understood that the answer to these mass uses was collective management. We can come back to this later in response to certain questions that you may wish to ask. What the origin of collective management was, to explain that answer and the context of the exceptions, assists in adjusting collective management, mandatory licences and the determination of value.
International copyright law protects this partnership between authors and distributors. It imposes limits on it that must be respected.
I will be pleased to answer your questions.
Thank you.