Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 1st, 2011

[Alain Pineau]

Yes, it is possible. And it is possible to find a balance between the rights of consumers and the rights of authors.

A right has already been recognized. It is a property right, not a fantasy. It is an intellectual property right. It applies to artists, intellectuals, all kinds of people, and companies. It includes patents and what have you.

Why should a group be penalized because its system does not fit in with the rest? We just have to accept that the arts and culture system is never quite in line with the rest.

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

Do I still have time?

[The Chair, Conservative, Gord Brown]

You have 30 seconds.

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

You have clearly shown your support for the education exemption. You said that education should be removed. How do you feel about changing the definition or defining education? Don’t you think that this would be like accepting that young people and the entire education sector will not pay for copyright when we should actually instill in young people this wonderful principle?

[Alain Pineau]

I completely agree with that and about the principle. That is why this is a fallback position for us rather than saying that they cannot remove it because, politically, it is motherhood and apple pie. They should at least change it to soften the impact.

The problem is that impacts are mixed in Bill C-32. For example, in a different context, there can be an exemption for something else. When we look at it in this way, we have to say that if you want the bill to be passed, you have to remove all that, because it will be extremely harmful.

[The Chair, Conservative, Gord Brown]

Thank you.

We'll move to Mr. Angus.

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

Thank you.

Thank you, gentlemen, for coming today.

The issue of establishing a new copyright regime goes to the original issues of what copyright was based on, which is remuneration and the public's right to access those works.

The government says this bill will restore the market. But it seems to me, from my many years of trying to feed my family on copyright, that a market is based on remuneration. You can't create new business models unless there's a way that you actually get paid for it. And the criticism we're hearing is that this bill, while giving certain rights for people to access works, has been called an attack on collective licensing.

Is it an attack on collective licensing?

[Bill Freeman]

I think there's little doubt that it is an attack on collective licensing.

Frankly, what we had been hoping in the creator community was that the legislation would strengthen collective rights licensing, because that's the way so many of us are getting income. It's the way the material is being distributed out there, and it's making it easy for distribution. We were quite surprised to see how it really is.

I've already given my view on the educational exemption. I would support the idea that Alain was talking about of clarifying it. Yes, we would support that. But this is going to be very damaging. I'm not a lawyer. I'm not going to speculate how it should be done, but please, please address this.

I think Marvin might have something to add about collective licensing in his field.

[Marvin Dolgay]

Agreed.

I'd like to thank Alain, actually, for pointing out that most of us in the sector are engaged in small business. The idea of not getting remuneration for our works would hurt the marketplace, because we wouldn't exist. And if we don't exist and there's no inventory, there's nothing to consume. That makes a pretty simple answer to the question, I think.

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

Just looking at the bill and crunching numbers, we're looking at musicians alone losing $41 million in revenue through the mechanical royalties that are being taken away. If we don't update the digital levee—and my colleagues seem to think this is the greatest political campaign they can run on, because they're going to lie about the numbers—we're looking at a $35 million shortfall for musicians.

We've been told that the market will be restored if we adopt the mechanisms of lock and litigate. But is there any evidence that individual musicians, individual creators, are going to be able to make any living through locking and litigating if they're not being remunerated for the copying of their work?

[Marvin Dolgay]

We won't be able to afford the litigation. It's pretty simple. If a creator wants to put out a piece of work for promotional purposes or do anything they want, they have the right to do that, but there must be some sort of teeth somewhere to protect their works so they can get paid for them. It's simple. To me, it's a payment for use; if our work is being used, if it's being enjoyed, if it's being consumed in the marketplace, there must be some payment for it. The balance right now is free. Free is not balance. There's got to be some money involved, and there has to be an exchange.

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

I'm interested in the discussion on language around the fair dealings, because I think, for all of us as legislators, it has already been defined by the Supreme Court, so it's the elephant in the room. We have to come up with language on fair dealing. I see there's a certain amount of apprehension because there are elements in this bill--for example, subsection 30.9(6)--that specifically strike out collective licensing rights for copying. We are going to have to deal with this.

Mr. Pineau, with all due respect, I don't think as legislators we can simply say we're going to make fair dealing go away because it's been defined. What kind of language do we need to ensure that we're not opening the barn door, that we're ensuring that people are accessing the rights the courts have defined, but that collective licensing is not unduly undermined to the point that we're going to see serious impact?

[Alain Pineau]

As I said, I think you will receive specific answers to your questions from our members. I'm just here to flag the broad issues, and I'm not a specialist. I acknowledge that this notion of fair dealing seems to be a slam-dunk conclusion, but it cannot prevent me from saying that it's a wrong decision, whether you're forced into it or not.

I thought the courts were there to interpret legislation and not necessarily the opposite. In some cases, yes, with the charter and everything. I don't know whether that judgment of the Supreme Court was linked to the charter. I should know, but I don't, so I give you that provisional answer.

You will have people coming here over the coming weeks, because we've been working with them, who I believe will be proposing or raising specific issues.

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

Thank you.

[Bill Freeman]

I would have to concur with what Alain says. I'm not a lawyer, and I can get into real trouble by making a suggestion that is offside, but it really has to be addressed. I've been present in discussions like this on what are we going to specifically propose. People are still working on that, but they will be here with specific suggestions.

I'm sorry, that's a real cop-out.

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

That's fine. I don't want to put you on the spot. I think my concern out of this bill is, number one, we want to have a bill that passes and ensures that the remuneration streams that have existed aren't attacked and dried up. We also want to make sure that we come out of this so that you as creators are not locked into endless litigation. I know that's been raised again and again, but I think if we don't have some clarifying language around fair dealing, we are going to be in the courts anyway. So perhaps that is something we can do at this committee, try to provide some kind of direction so that we're not facing years and years of litigation, which may or may not happen regardless of the bill. I think it's incumbent upon us to try.

[Bill Freeman]

Okay.

[Marvin Dolgay]

I also think it's important that you understand that with those years of litigation, you could lose a generation of composers, artists, emerging artists, who will not be able to exist. They'll become hobbyists, while the lawyers, the politicians, and everybody will be making a lot of money and working on this; in that stream, we will be at the bottom of our food chain again. We just can't survive, and we're going to lose a generation.

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

Mr. Dolgay, last year 100,000 American citizens were sued for downloading. That's dramatically up over the 35,000 who were sued, apparently, in the four or five years before that. From my talks with the musician community that I know in the United States, nobody's feeling all that confident that this is a solution. The only confidence they have is being remunerated for the fact that people will copy regardless.

I'd like to ask you a question in terms of the need for some compensation in the private levy, because we've been here before. You probably remember when cable TV came in. I'm not bragging here, but I co-wrote a song that got a Juno nomination, and it won the Juno for video of the year. I made $56 that year. They decided that cable TV shouldn't have to pay for use of your music because they were doing a service, and there was a big hue and cry, that if video TV were made, that whole new market would disappear--

[The Chair, Conservative, Gord Brown]

Mr. Angus, we're going to have to wrap it up.

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

In the end they paid up and it went on.

Do you believe this can happen with a digital levy?

[Marvin Dolgay]

I'm sorry. I'm not positive on your question.

I do believe that the wrong people were sued. I don't want to sue the consumer. I don't want to sue the mother or the grandmother, or people like that, but there is--

[The Chair, Conservative, Gord Brown]

Okay. That's going to have to be it.

We're going to move to Mr. Lake for seven minutes.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Thank you, Mr. Chair. Thank you to the witnesses for coming today.

Mr. Pineau, in your opening statement you used—and you reiterated it a couple of times—a figure of $126 million a year and counting, in terms of what the bill takes away. Can you give a specific accounting of that number? Where does that number come from specifically?

[Alain Pineau]

I cannot provide that to you today--I don't have it with me here--but it's based on figures we have collected, and we have all the sources and all the identification of the sources for that. This is a certain figure; it does not cover the loss of revenue that is due currently to piracy or to private copying usage without any form of compensation on new devices, like iPods and iPhones. It does not cover that, because we won't venture there. But it's substantial revenue that is lost because there is no system extended from the old system.

That's why we're pushing for those things. The $126 million is a firm figure, and we will put it on the public record.