Evidence of meeting #7 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.

On the agenda

MPs speaking

Also speaking

Zachary Dayler  National Director, Canadian Alliance of Student Associations
Danielle Parr  Executive Director, Entertainment Software Association of Canada
Spencer Keys  Government Relations Officer, Canadian Alliance of Student Associations
Jason Kee  Director, Policy and Legal Affairs, Entertainment Software Association of Canada
Carolyn Wood  Executive Director, Association of Canadian Publishers
Marc Sauvé  Director, Research Services and Legislation, Barreau du Québec
Pierre-Emmanuel Moyse  Professor, McGill University, Barreau du Québec
Georges Azzaria  Professor, Laval University, Barreau du Québec
John Manley  President and Chief Executive Officer, Canadian Council of Chief Executives
Grace Westcott  Legal Counsel, Association of Canadian Publishers

3:55 p.m.

Liberal

Marc Garneau Liberal Westmount—Ville-Marie, QC

I happen to agree that it needs to be tightened up.

I think my time is up.

3:55 p.m.

Conservative

The Chair Conservative Gord Brown

Thank you.

Mrs. Lavallée, you have seven minutes.

December 8th, 2010 / 3:55 p.m.

Bloc

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

Thank you very much. I would like to begin with a comment addressed to our witnesses from the Canadian Alliance of Student Associations. After that, I will have questions for our witnesses from the Entertainment Software Association of Canada.

As I see it, the exemption you are requesting for education is not a good thing. Allow me to explain. First of all, it's a very bad principle to be teaching our young people and our children. They should be taught to respect copyright and intellectual property, and the fact that intellectual property and copyright should be remunerated. Students, first and foremost, should be learning this principle and applying it. Allowing you to be relieved of the obligation to pay copyright would not serve you well at all. If you feel that your fees are too high, the school should be asking for lower prices from other suppliers—for example, for pencils, blackboards and chairs. We should not be reducing copyright remuneration pay to creators, because they are the people who earn the least. On average, they earn less than $25,000 a year in Canada.

It's a little like asking to be exempted from homework or other school work for a week. It would be pleasant at the time, but afterwards, when you had to take the ministry exams, you would see that you didn't have all the tools or all the knowledge you need to pass your exams. In fact, you are punishing yourselves. Tomorrow, you will be these same creators and scientists publishing your work. Unfortunately, you will not be entitled to copyright.

Now I have some questions for our witnesses from the Entertainment Software Association of Canada. I read your brief very carefully. From what I understood, you are basically asking for five amendments.

The first amendment has to do with circumvention, and everyone supports you on that. This is an unintended mistake on the part of the people who drafted this bill. Everyone wants to curb piracy and ensure that it is wiped out. In that respect, this isn't a serious problem.

Your second amendment deals with enabling infringement. This is another huge problem. Under the current act, this applies to any service which is “designed primarily to enable” on-line piracy. Your amendment suggests removing the word “primarily” and replacing it with the term “operated”, in order to clarify things.

Your third amendment deals with the exception for user-generated content, known as the YouTube exemption. This does create a problem because it basically gives anyone the right to use works without authorization and without remuneration for non-commercial purposes. As you stated in your brief, in the software gaming industry, as is the case with other artistic genres, people are more interested in the glory than in the money. You are recommending that this clause be amended so as to restrict it substantially. Why don't you simply ask to have it removed, since it is an exception that is found nowhere else in the world and that Canada seems to have just pulled out of a Cracker Jack box.

3:55 p.m.

Executive Director, Entertainment Software Association of Canada

Danielle Parr

I will respond in English; it will be clearer.

3:55 p.m.

Bloc

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

No problem. I have access to simultaneous translation.

3:55 p.m.

Executive Director, Entertainment Software Association of Canada

Danielle Parr

Parfait.

Basically, I think we understand that this bill is a compromise of a wide variety of stakeholders and a wide variety of industries, and as my colleague said, generally our industry takes a fairly permissive view to user-generated content. There are just certain instances where we think it can cause real harm to our industry, and that's why we're just proposing a minor amendment to the legislation. In principle we don't have a problem with UGC, but we just wanted to narrow the scope of what's allowed.

4 p.m.

Bloc

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

Why not just remove it?

4 p.m.

Director, Policy and Legal Affairs, Entertainment Software Association of Canada

Jason Kee

Obviously, eliminating the provision entirely would resolve the issue; we were attempting to operate within the policy framework outlined with this bill and understand the clear desire or intention to facilitate at least some kind of limited personal use creation working within that framework. But it would resolve the issue.

4 p.m.

Bloc

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

Ms. Parr, I would like to come back to what you said earlier about this bill being a compromise. I have to say that, unfortunately, it is not a compromise. This bill is heavily weighted in favour of an industry such as yours, entertainment software. I'm happy for you, because your industry is important. However, this bill is seriously imbalanced.

You are proposing five amendments. If these amendments do not pass, would you still be prepared to support Bill C-32? I guess you would be in favour of Bill C-32, even though the artistic and creative community is sharply critical, has denounced it and would never want it to pass.

One proof of that imbalance is the damages regime. You refer to that in the fifth amendment you are suggesting. The damages you refer to relate more to musical works.

This is about circumventing a tool which is extremely valuable for you, namely digital locks. Clause 48 talks about criminal sanctions amounting to $1 million.

A musical work is worth $20,000 in terms of damages, whereas circumvention of a digital lock, which is extremely valuable for the gaming software industry, costs $1 million and exposes someone guilty of such an offence to a five-year prison term. There are pre-set amounts for damages. That is a good thing, but they are capped at $20,000, which results in an imbalance.

So, that brings me to damages. I would like you to tell me whether I have this right. Does the $20,000 fine also apply to software that is copied?

4 p.m.

Director, Policy and Legal Affairs, Entertainment Software Association of Canada

Jason Kee

Within the context of this bill, we're not proposing an increase to the level of statutory damages, mainly because, in our view, the commercial and non-commercial distinction that is being proposed in the bill creates a number of unintended consequences, largely on the basis of there being plenty of significant economic harm being created by parties who are doing so for non-commercial purposes.

Essentially, it's resolving the issue in a way that would not permit wrongdoers to get away with things, as opposed to suggesting an increase of the $20,000 limit.

4 p.m.

Conservative

The Chair Conservative Gord Brown

Thank you very much.

Mr. Angus, you have seven minutes.

4 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Thank you, Mr. Chair.

Thank you, both groups, for very interesting presentations.

I'd like to start off, Mr. Kee and Madam Parr, on the issue of user-generated content. I find interesting the suggestion from the Bloc that we'll just erase the provision and then all of the user-generated content will magically go away. But we know it doesn't. User-generated content is all over the Internet.

I must confess myself guilty; I do lots of user-generated content with my little iMovie. I think some of it's not bad.

I'll leave that to my colleagues to go and check out, though.

4 p.m.

An hon. member

[Inaudible--Editor]...debate.

4 p.m.

Voices

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4 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

What I'd like have clarified, though, is how do we continue to deal with the fact that people are actively involved in creating and remixing, and how do we separate those?

I had asked one of the previous witnesses whether or not the language should be clarified in proposed section 29.21 by putting in the Berne three-step provision. I say this because, clearly, user-generated content should not unreasonably prejudice a work. It should not interfere with the normal exploitation of the work. I wonder whether or not that language is clear enough or whether your suggestion, based on the idea of a previous witness, Ms. D'Agostino, about “transformative uses”, would be.

Do you think the word “transformative” covers that, or should we be more specific?

4:05 p.m.

Director, Policy and Legal Affairs, Entertainment Software Association of Canada

Jason Kee

I think “transformative” would be one element of several elements you would need to incorporate in there.

I certainly think the suggestion to incorporate elements like Berne is exactly the direction we're proposing. The specific concern I would have about the Berne language is that Berne is about determining when an exception is appropriate or not, and it would be conflating two very different regimes to incorporate that specific language.

4:05 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Right.

4:05 p.m.

Director, Policy and Legal Affairs, Entertainment Software Association of Canada

Jason Kee

But I am essentially proposing those elements, because, first, I'm proposing that it doesn't affect the work prejudicially and I'm proposing that you incorporate fair-dealing style limitations, which is our interpretation of what Berne is. And I'm proposing this transformative element, because it's actually an element that's been included in other jurisdictions but that we haven't included, but which is very sensible to incorporate into a UGC provision—because, again, I think the real value of it is that you're creating something new that you're distributing to the world. That work is more than just fair dealing; it's actually doing something beyond that, and the word “transformative” gets at that.

4:05 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

All right.

I want to follow up on the issue of technological protection measures, because clearly that's an issue of some debate. At the outset I will say that I recognize the incredible importance of the gaming industry in Canada, the gaming software. We are a world leader, and we want to make sure we protect that. We don't want to take the bottom out, and technological protection measures certainly play a role.

On the other hand, we have issues. For example, I was talking to documentary filmmakers. If there's a technological protection measure on the DVD, they might have the right of access for parody or satire, even for commentary, but if they break it, they're going to be in a bit of a dicey situation.

I was speaking with television journalists who were saying they didn't know if they were now going to be able to make use of commentary showing footage, because if there are technological protection measures in place, that would impede their ability to do journalism.

Can we find language that is going to ensure that the rights being guaranteed on excerpting for parody or satire, for example, are not arbitrarily erased? But meanwhile we maintain strong provisions so someone is not going to copy a bunch of games for private purposes and give them out to all their relatives at Christmas.

4:05 p.m.

Executive Director, Entertainment Software Association of Canada

Danielle Parr

We appreciate your understanding that our industry, I think, is different from a lot of other industries in the sense of the expectations about format shifting.

One thing I would point out in terms of fair use is that you can still make an analog copy of something and exercise your fair dealing rights. You can videotape portions of a video game and use that. You can take screen shots. You can do all those things. It doesn't necessarily have to guarantee the right to make a perfect digital copy and use that in the work.

I just give you that to contemplate.

4:05 p.m.

Director, Policy and Legal Affairs, Entertainment Software Association of Canada

Jason Kee

The trick is that balance, and it's very challenging to achieve. From our point of view we have a principal, overriding concern, which is to ensure that those who are trafficking in circumvention devices, offering circumvention services, particularly charging money for it and in doing so making money on the backs of creators, are not able to do that.

The bill currently gets at that and does so in a very robust way and then offers a laundry list of exceptions and additional regulatory-making power and so forth to try to balance the interests there.

The main concern we would have is that the more you open it up, the more likely you're going to find these bad actors essentially exploiting those loopholes to justify their own activities. This is best illustrated by giving you a quick example. We have a guy who decides he wants to get UBISOFT's Assassin's Creed Brotherhood, which was just released by UBISOFT Montreal--buy it now--and downloads it and puts it into his Xbox. It recognizes it's a pirated version and won't play it. So he takes that Xbox to someone to have it modified so it will play the pirated game. Now he has an Xbox that will play all pirated games. The guy makes $80 to $100 on the modding services.

If we're dealing with a formulation that has broad exceptions in it, what's going to happen is that the act of infringement, which is the piracy of the game, the downloading of it, and the act of circumvention are distinct from one another. If we try to approach this guy who did the circumvention for money, saying he did something illegal, he's going to say he had no knowledge of any piracy: he's innocent. It makes the threshold and what we have to cross in order to establish his guilt nearly impossible to attain.

So our principal concern is to ensure that any sections that are introduced don't undermine our ability to pursue these actors and also don't have a negative effect on the overall digital content.

4:10 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

That's interesting.

To our student representatives--again, we're trying to find out how we maintain this balance--are you seeing unintended consequences, and is there a way we can deal with this?

4:10 p.m.

Government Relations Officer, Canadian Alliance of Student Associations

Spencer Keys

Yes, absolutely. I think the key for us is linking circumvention to infringement and making sure that is very clear. We have no problem with digital locks for preventing infringement. That scene is totally reasonable to us. It's when it's a non-infringing purpose that it becomes a concern.

You're bringing up the idea of documentary filmmakers, and certainly it's something we are concerned about because news reporters have the fair dealing right to use copyrighted work for news, but if a digital lock trumps that fair dealing right and works behind a lock, it would become unreportable, unstudiable, uncriticizable, and that would be a step backwards.

So if you are linking it to infringement...and make sure that it's still carved out that if it's for a fair dealing purpose, you can circumvent in that particular instance. I'm glad to hear there's so much support for CCH and the six-part test, and that might be a way to adjudicate those peripheral disputes. But we think a balance can be struck there.

4:10 p.m.

Conservative

The Chair Conservative Gord Brown

Thank you very much.

We'll have to move to Mr. Lake, for seven minutes.

4:10 p.m.

Conservative

Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB

Thank you, Mr. Chair.

Rather than break the pattern here, I'm sure Mr. Kee might have some comment to make on Mr. Keys' recent comments or just on previous comments regarding technological protection measures.

Maybe I'll let you comment on what Mr. Keys has suggested.