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

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

Okay.

Professor Azzaria, I'd like to ask you about that, because much of our pressure has come from the U.S. trade interests. This past July, U.S. courts ruled that in fact there were problems with their own DMCA legislation in how it dealt with the fair use provisions, because the technological protection measures aren't rights in themselves. They're enforcement measures, so they're more like adjunct rights. So even the U.S. courts have decided that those adjunct rights don't trump the rights that exist for U.S. citizens, and fair use is much broader in the U.S. than it would be under fair dealing.

Do you believe we could have provisions in terms of our technological protection measures that would be internationally compliant but would also protect, where it is reasonable to protect, the rights that citizens have?

[Georges Azzaria]

I think that you have put your finger on another problem with this bill, which is sort of what we were discussing earlier. The technical protection measures are an obligation for Canada, in any case, because the WIPO treaties state that, one way or another, we have to have these technical protection measures.

So, the question doesn't really arise. Yes, we need technical protection measures. But which ones do we need and to what extent do we need them? That is the question that follows.

Under Bill C-32, we ultimately are dealing with two systems. On the one hand, there will be the authors working with it, and at the same time, there will be other people who won't be working with it. I'm not sure that is really the aim of technical protection measures. Initially, they were an additional barrier. One might even ask whether this is copyright. People will say it is, because the WIPO treaties say so, but it's as though there were two types of authors: the ones that work with technical protection measures and have a somewhat special regime, and the others, who have decided they don't and who work on the basis of another system.

I don't think the Copyright Act should support these two types of measures.

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

I'd like to follow up on that, because it had been mentioned in one of the earlier presentations that these rights could still exist in an analog world. So there would be a set of rights that exist for paper and for analog, but once they were in a digital realm, those rights would be subservient to the enforcement measures under technological protection measures.

Is it possible, or is it right, in terms of legislation, to establish basically a two-tiered set of rights in terms of what a citizen can access?

[Georges Azzaria]

That is a question you should put to the lawmakers. I'm not sure it's a good thing. You're right that the people who make use of TPMs may cause problems for other people who have a legitimate desire to take advantage of certain exceptions in the legislation.

That is why I think we have to look at what is being done in Europe. There are systems where limitations are placed on these technical protection measures—in other words, you can't use them to prevent people from accessing fair dealing which is already permitted in the non-digital universe.

I don't know whether that answers your question.

[The Chair, Conservative, Gord Brown]

Mr. Del Mastro, for seven minutes. You will be our last questioner.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chairman.

Thank you to the witnesses.

Mr. Manley, I know what you were doing on December 18, 1997: you were putting out a release, which I am holding here. It's a release from you and the Honourable Sheila Copps where you announced that you were committed to signing two new international treaties dealing with copyright, specifically the World Intellectual Property Organization, or WIPO.

I just want to quote you here:

The treaties support the federal government's goal of making Canada a leading-edge supplier of content for the information highway and multimedia, and reflects the federal government's role in creating the right conditions for electronic commerce.

The release also says that that commitment followed a recommendation made by the information highway advisory council that Canada should respond quickly to the World Intellectual Property Organization's 1996 copyright and performance treaties.

I think that's important: I think you were right then and I think you're right today.

There are two aspects that I'd like to get your opinion on. One, you correctly pointed out here that if we want to take advantage of all the economic opportunities that exist in the digital age and all of the opportunities that exist going forward, we have to establish the rules.

But in this release, you also point out the fact that Canada is part of a global economy. In your position, you must hear a lot from our global partners with respect to copyright laws in Canada. What are you hearing from them with respect to this bill, and with respect to Canada needing to catch up on its copyright legislation?

So there are two aspects: first, how important is this to the economy, and second, what are our trading partners saying to you?

[John Manley]

By the way, I might add as a footnote to your quotation that the information highway advisory council was chaired by the president of the University of Waterloo, one David Johnston, who gave us that report.

[Dean Del Mastro, Conservative, Peterborough, ON]

Very good.

[John Manley]

What I would say is that intellectual property becomes fundamental to a knowledge economy. We can do a lot of other things well, which don't touch on it; certainly our natural resource sector is.... I mean, there's a certain amount of intellectual property protection, obviously not copyright; we do well in other sectors also. But in terms of much of the components of a knowledge economy, this becomes a fundamental cornerstone.

Some of our best-known technology companies would tell you that they exist because of intellectual property protection, and they exist in a global context because Canada is just too small a market for them to succeed otherwise. Some of those have this issue that Mr. Angus pointed to, which I had referred to, around protecting against the ability to reverse-engineer. I'd suggest that's a pretty significant group, that maybe some people didn't hear, saying that perhaps the bill went a bit too far.

So I think there is a context in which you have to find that balance that gives the level of protection that's necessary in order to preserve the value for the creator, at the same time as not suffocating the ability to distribute or disperse knowledge. You know, it doesn't really matter who it is: it's not one idea that makes all the difference but rather the innovation that's built on idea after idea. If you wrap it up too tightly in a straitjacket, what you do is suppress innovation.

You have to have the incentive to create. You also have to have the incentive to build.

[Dean Del Mastro, Conservative, Peterborough, ON]

On international partners, are you hearing anything from any of our trading partners on Canada's...?

[John Manley]

Yes, absolutely. Canada is now seen as a bit of an outlier by some, and they are anxious to see us demonstrate our commitment to international obligations and to international standards.

[Dean Del Mastro, Conservative, Peterborough, ON]

We had some earlier witnesses who talked about the educational exemption on fair dealing. I note in your comments that you address that. You talked about the appropriate balance, and about how that can drive innovation and so forth.

Could you talk a little bit more about that? It's widely misunderstood as to what “fair dealing” means. As my colleague pointed out earlier, there is $20 million currently being collected from the collective. That is not under threat, nor are the sales of textbooks threatened by this.

Can you just talk a little bit about that?

[John Manley]

I have to say that among my members I don't represent educational institutions, I don't represent students. I have members who are both holders of copyright and members who are ISPs. I have members who are broadcasters, who are distributors. So I have a range, but not in the educational sector. Where we come down is very much in line with the Wilson panel, which says it is just so important that we ensure, within the educational context, that the best possible access be available.

This is where I really think it should be looked at in five years' time, to see if some of these extreme expectations that some have said they have come true, but in the meantime come down, in balance, on the side of education.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you.

Sometimes in this place politics gets in the way of good policy. I know you know that, and I appreciate the fact that you've put a push on and encouraged members to meet more often to try to get this bill through. I appreciate that a great deal.

The bill doesn't deal with the digital levy. In fact, my opinion is that any kind of amendment on it is beyond the scope of the legislative committee. But I would like to get your opinion on it, because I think we're actually talking about reconstructing a market where all the dollars are, and it seems others are focusing on a very small, very minute amount of money versus rebuilding an industry.

Do you have any comments on that?

[John Manley]

We tried a digital levy on recordable CDs in the 1998 legislation. I think that experience demonstrated that you just don't know where things are going. Technology is evolving so rapidly, and I suspect that anything you do is probably going to be overtaken fairly quickly by technology. For example, I suspect we will be using pens as recording devices. The attempt to impose a levy is probably going to be frustrated in that way.

Second, my belief is that it's an attempt to solve one problem by imposing a solution unrelated to the problem itself. The use of digital media is so diverse that it's unfair to impose on all uses of that media the cost of compensating the producers in a certain sector. We resisted doing that in 1998, when it was suggested that a levy be applied to hard drives, for the simple reason that they were being used for business and all kinds of applications, and not simply for copying music, as the concern was at the time. I still know people who use their recordable CDs, even though they could use recordable DVDs free of it, to keep their Kodak pictures on. Yet they're paying a fee that goes to an unrelated point.

You know, accountability and responsibility say that if you have a problem, figure out a way to fix that problem without imposing the responsibility on others unfairly.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you very much.

[The Chair, Conservative, Gord Brown]

Thank you very much. That is the last word.

Thank you to our witnesses for being here today. It was very enlightening.

The meeting is adjourned.