Bill C-32 (40th Parliament, 3rd Session) Committee on Dec. 8th, 2010

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

The collective—those who collect the money.

[Carolyn Wood]

Well, it depends on the specifics—

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Sometimes yes and sometimes no?

[Carolyn Wood]

—but certainly it would be authors and publishers who conceivably would be the plaintiffs. If the collective is involved in that particular infringement, then of course they would be party to this as well. I don't think it's realistic to think that any infringement that occurs would be addressed by Access Copyright or a collective exclusively.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Thank you. There is clearly a potential for income losses in your industry. At the very least, an amendment is needed. There are some possibilities. We could scrap the education exemption, but are there other options as well? Is there some way of defining education, for instance? Is there a way of incorporating the three-tiered test under the Berne Convention, or some other one, in order to define this concept and limit excesses under the education exemption? Do you have any suggestions in that area?

There is clearly a potential for revenue losses in your industry. At the very least, an amendment is needed.

There are certain possibilities. We could scrap the education exemption, but are there other things we could do? Is there some way of defining education, for example? Would it be possible to incorporate the three-tiered test under the Berne Convention, or some other one, in order to define this and prevent things from getting out of control in terms of the education exemption? Do you have any suggestions in that regard?

[Carolyn Wood]

Certainly we would welcome a narrowing of the definition.

As to the specifics of the applicability of the three-step test in this context, I'm going to ask Grace Westcott to answer for us.

[Grace Westcott, Legal Counsel, Association of Canadian Publishers]

Yes, a three-step test would be a helpful way to narrow the scope of an educational fair dealing. In addition, defining what education is in the context.... I know the government has made pains since day one to say that education only pertains to education in a structured environment, but we really do need a definition to that. And perhaps we could start with “educational institutions”, for which we have a definition. It's somewhere to begin to pin that down.

I also think one of the issues in fair dealing for educational purposes is how would that very broad exception relate to the more specific exceptions the government has spent a lot of time honing in the bill and that we already have in existence in the act? Would a broad fair dealing for educational purposes trump or elbow aside some of these more specific exceptions?

It seems wrong and it seems counterintuitive. These are specific situations about which the legislature has spent a great deal of time—

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

I'm sorry, I have to interrupt you. I only have a few seconds left, and that wasn't my only question.

Thank you very much. I'm sure we're going to receive more detailed stuff from you on this, right?

I have a question for our witnesses from the Barreau du Québec. I will make it very quick, because I have only 15 seconds left.

You wrote a letter to the minister on October 14. Did you receive an answer?

[Marc Sauvé]

To my knowledge, we did not receive any answer. Speaking for myself, I heard nothing about our having received an acknowledgement or anything else.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

You didn't even receive an acknowledgement. Fine, thank you.

Briefly, as you see it, the content of Bill C-32 is not sufficient for us to be in a position to ratify international treaties. Did I get that right?

[Georges Azzaria]

Well, there may be challenges. Last Monday, Ysolde Gendreau testified before the committee, and I believe that she explained at some length that the bill, as currently worded, would have trouble meeting the standard if it were subject to the three-tiered test, in particular. That means there would be challenges to trade organizations, either the WTO or another organization.

It is pretty clear to me that there is a cloud over Bill C-32.

[The Chair, Conservative, Gord Brown]

Thank you.

Mrs. Lavallée, you have seven minutes.

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

Thank you very much.

Welcome, everyone. Greetings as well to our witnesses from the Barreau du Québec. I read your brief and we will talk about it in a moment.

I would like to begin with Mr. Manley.

Thank you for being here, and welcome back. I think it's been quite a while since you were in Ottawa. You are not living on the same planet as us and I am going to try to--

[John Manley]

I certainly hope that is not the case.

[Voices]

Ah, ah!

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

The fact is you are in another world—another bubble. Here everyone has noted that this bill is seriously imbalanced. The fact that the Canadian Council of Chief Executives is saying that it is balanced suggests to me that it really is seriously imbalanced.

I'd like to give you some information. What I would like, basically, is for you to go back to your chief executives and tell them that somebody has not given you the complete truth with respect to this bill.

I would like to present a different viewpoint.

In order to drive home the point that his bill was well accepted within the heritage community, the parliamentary secretary to the Minister of Canadian Heritage stated in the House that 38 multinationals, 400 businesses and 150 CEOs agreed with it. That is what he said.

When he was asked whether any artists agreed with it, he was only able to name one. He was so thrilled to have this support that he mentioned it twice in the House. Only one artist agreed with it, but as Dean Del Mastro stated in the House, there are 400 companies and 150 CEOs that do agree with it.

You also talked about laws that protect and reward the fruits of intellectual capital. I will give you some specific examples a little later. But this is anything but a balanced approach.

I also winced when you talked about extensive national consultations. I want you to know, Mr. Manley, that the consultations in Montreal, which is a large cultural capital, not a small one, were held on July 31, when half of the city had shut down and people were out of town. Furthermore, organizations as important as the Union des artistes du Québec had trouble getting invited and were forced to make their presentation in Quebec City. Talk about phony consultations.

Your friend, Mr. Pablo Rodriguez, objected to your saying that you are “aware that some Canadians are of the view that this bill goes too far in protecting the rights of creators”. But no one has ever said that, Mr. Manley; no one. I have never heard anyone say that this bill goes too far in protecting the rights of artists. I wanted you to know that.

According to you, the purpose of the copyright bill “has always been to strike a balance between the interests of creators and those of the general public”. Once again, allow me to correct you.

Historically, since Queen Anne of England back in 1710, copyright legislation has served to balance the rights of creators and disseminators. In the 18th century, this term included printers and publishers. Now it has a much broader meaning.

This bill has major flaws and will take money away from artists. First of all, the non-modernization of the private copying regime will remove an average of $13.8 million all across Canada. The education exemption, that young students were claiming earlier, will remove some $40 million annually. Write this down so that you can repeat it afterwards. This is money that is being taken out of their pockets. These are royalties that they receive as a result of their author's rights, and which they will no longer have. The abolition of ephemeral recordings will remove some $21 million in income. And artists are not the only ones saying this; broadcasters are of the same view. They said it would only cost them $21 million. There is also the YouTube exception, that the Entertainment Software Association talked about earlier, where preset damages are capped at $20,000. A musical work will never be worth more than $20,000. And I could give you other similar examples.

As you said yourself, the lack of accountability for Internet service providers makes no sense. They must be held to account. There are no royalties for artists and a notice system that is probably ineffective since there are no fines. This bill is focussed on digital locks, which works perfectly for the software and gaming software industry, but is very poorly adapted to the music industry. And, again, there are no residual rights for visual artists.

In a letter dated October 14, your colleagues, representatives of the Barreau who are sitting right next to you, said this about the bill: “These are piecemeal amendments lacking in vision and overall consistency, and rehashing parts of foreign models that are already known to be out of date.” The three intellectuals seated to the left of you wrote that. That is so true that the Quebec National Assembly unanimously passed a motion against Bill C-32, asking for substantial amendments.

With that, I will give our witnesses from the Barreau du Québec a chance to speak. Of course, you will have an opportunity to respond to my comments.

[A voice]

You have 15 seconds left.

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

But it made me feel better.

[The Chair, Conservative, Gord Brown]

Are there questions there?

[John Manley]

There is no need to respond to that kind of speech. It wasn't a question; it was a statement.

I am from another world. I am from a world where the economy is important, where people who are trying to create jobs have points of view that reflect a concern for innovation and dissemination of information.

That was a great speech to make in front of a group in your riding during an election campaign. However, this is the third time that the House of Commons has tried to amend the Copyright Act. We will be missing another opportunity.

Are we going to continue with legislation that was very good in its day, but which goes back to 1998? I don't think so.

[The Chair, Conservative, Gord Brown]

All right.

We'll move to Mr. Angus, for seven minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Chair.

Thank you, everyone, for coming today. This has been a very interesting discussion.

Mr. Manley, I wanted to start off with you for a moment, because I was interested in your comments on the issue of a balanced approach.

I think one of the issues we see with copyright--or I certainly have, since my election--is that some industries come to me only when they are very concerned. Sometimes they're concerned because they're under threat, and sometimes they're concerned because there is new competition. So the balance is how do we allow new entrants and how do we make sure that it's not unfair? Yesterday's pirates are today's demand for copyright.

Hollywood existed not because the weather was nice out there but because they were trying to escape the copyright of the Thomas Edison corporation. Sony was the king pirate of the 1970s. I think Jack Valenti called it the Boston Strangler of the movie industry. Now Sony, of course, is one of the biggest defenders of TPMs. So what we have to do is find the balance.

I was struck, though, that you pointed out that you thought we should tighten up the TPM provisions on reverse engineering and interoperability, because I've heard from many people that it's key for start-up businesses, for research, for innovation to actually bring new entrants into the market. So why is it that we should apply the TPM provisions on reverse engineering and interoperability?

[John Manley]

Mr. Angus, you have some good examples of how times have changed. I think in the area of software engineering, for many Canadian companies you have the necessity to not only establish their innovation and get it to market but also to secure a market share that's adequate before they face competition from others who may have reverse-engineered.

I think the real issue we need to get at here is the capacity to reverse engineer. It's not the very simply stated “we may need a backup copy” for whatever reason but to inhibit the reach to reverse engineering. I think this can be done with fairly modest, fairly technical amendments, but that's the essence of the concern that some of my members have brought forward.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I have certainly heard about the need to maintain it so we don't get into a situation where a company, once it's established, would certainly want to squash competition. That's the nature of business. Our job, as legislators, is to make sure that provisions aren't used unfairly.

I'm interested in terms of our obligations internationally with technological protection measures. On June 10, 2010, the WIPO Standing Committee on Copyright and Related Rights released a study, a questionnaire, of 31 member states, 19 of which stated that they do have technological protection measures, with exemptions recognized. Some of the exemptions are more modest, some of them are a bit broader, but those exemptions are guaranteed in terms of what was existing in law.

Canada would be very much in place, within its WIPO obligations, according to article 10, if we allowed the technological protection measures but recognized that there were limitations in terms of protecting exemptions.

Would you support that?

[John Manley]

Yes, I think WIPO is the minimum standard that we need to have.