Evidence of meeting #3 for Canadian Heritage 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.
11:05 a.m.
Conservative
The Chair Conservative Gary Schellenberger
Good morning, everyone.
Welcome to meeting three of the Standing Committee on Canadian Heritage. Pursuant to Standing Order 108(2), we are doing a study of Canada and the new media.
This morning we welcome, from the University of Ottawa, Michael Geist, chair of research in Internet and e-commerce law.
Good morning, Mr. Geist. If you would, start with your presentation, please...
I have a point of order from Mr. Rodriguez.
11:05 a.m.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
Mr. Chair, as a point of information, I'd like to know why there were no meetings this Tuesday and last Thursday.
11:05 a.m.
Conservative
The Chair Conservative Gary Schellenberger
This Tuesday we didn't have any witnesses. Our witnesses couldn't get here for the meeting. That's why there was no meeting.
11:05 a.m.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
And last week? Two meetings were cancelled. I'd like to know why.
11:05 a.m.
Conservative
The Chair Conservative Gary Schellenberger
Again, we didn't have witnesses.
When we went into this, we had to go back to our witness list and back to the witnesses. Mr. Geist is here today because he was available for today. Not all our witnesses are available for the days that we require. Going forward, there will be witnesses at every one of our meetings.
11:05 a.m.
Professor Michael Geist Chair, Research in Internet and E-Commerce Law, University of Ottawa
Great. Thank you, Chair.
Good morning. As you heard, my name's Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I'm also a columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. I was a member of the national task force on spam; I was on the board of directors for many years for the Canadian Internet Registration Authority, CIRA, which governs the dot-ca domain name; and I sit on the Privacy Commissioner of Canada's expert advisory board, but I appear before this committee today in a personal capacity and represent only my own views.
The committee posed several questions, but I think two capture the essence of the issue. First, how have developments in digital media changed the new media environment? Second, what can government do? I'd like to try to take a stab at least at opening some discussion on both.
First, how have things changed? As we move from a world that was largely characterized as one of scarcity to one of abundance, I think we're seeing Canadians play an important role. Record labels like Nettwerk Records in British Columbia or Arts&Crafts in Toronto are at the forefront of using the Internet to promote their artists and benefit from its great potential. Notwithstanding some doom and gloom, the Canadian digital music market has grown faster than the U.S. market each of the past four years. In fact, we rank seventh worldwide for digital music sales, which is virtually identical to our sixth-place ranking for offline music sales.
The Canadian entertainment software industry is growing at a breathtaking pace, with regular investments in Quebec, Ontario, and British Columbia. It's not legal frameworks that are dictating the investments but rather Canadian talent, creativity, and marketplace success. Smaller players are finding success in new markets as well, like iPhone and Facebook applications. The Canadian television network The Score is a North American leader for its online application. Companies like Polar Mobile now supply applications for the iPhone to a global market.
Canadians also play a key role in new book models. For example, Wikitravel is one of the Internet's most acclaimed travel sites. It was launched in 2003 by two Montreal residents, Evan Prodromou and Michele Ann Jenkins. They used the same Wiki collaborative technology that's proven so successful for Wikipedia, inviting travellers to post their comments and experiences about places around the world in an effort to create a community-generated travel guide. The site has accumulated more than 30,000 travel guides in 18 different languages, with 10,000 editorial contributions each week. Content is licensed under a creative commons licence that allows the public to use it, copy it, edit it, and freely work with it. Building on that success, they've established Wikitravel Press. It represents a new approach to the travel book publishing business based on Internet collaborative tools and print-on-demand technologies.
Now, the compelling stories aren't limited just to new entrants. Consider the National Film Board of Canada. I don't expect the NFB to replace YouTube in the minds of many when it comes to Internet video, but a series of innovations has highlighted the benefits of open distribution and the potential for Canadian content to reach a global audience. Last year, just months before the NFB celebrated its 70th anniversary, it launched the NFB Screening Room, an online portal designed to make its films more readily accessible to Canadians and interested viewers around the world. To meet its objective it committed to being as open, transparent, and accessible as possible, including making the films freely available and embeddable on third-party websites.
In January 2009, just over a year ago, it started with 500 films. Today that number has nearly tripled, with almost 1,500 films, clips, and trailers, and the growing selection has been accompanied by a massive increase in audience. There have been 3.7 million online film views just in that first year alone: 2.2 million from Canada and another 1.5 million from the rest of the world. That's set to grow as the daily views, just in January, were 20,000 Canadian films by the NFB. That's per day.
The site also uses mobile technology to increase public access. In October of last year, just a few months ago, it launched an iPhone application that was downloaded more than 170,000 times and led to more than half a million views on the ubiquitous mobile device.
Similarly, the CBC has experimented with new distribution models. In 2008 it released a high-resolution version of the program Canada's Next Great Prime Minister without any copy protection on BitTorrent, the peer-to-peer protocol that's often linked with unauthorized file sharing. The public was able to download, copy, and share the program without any restrictions.
The use of BitTorrent may come as a surprise to some who mistakenly equate file sharing solely with infringing activities. BitTorrent and other peer-to-peer technologies are finding increasing favour with legitimate businesses attracted to its ability to distribute content in an efficient, cost-effective fashion. It has become particularly important for Canadian independent filmmakers and creators, who see it as a cheaper way to distribute their work.
In fact, the CBC's model was inspired by what the Norwegian Broadcasting Corporation had done. It had earlier used BitTorrent to distribute Nordkalotten 365, one of that country's most popular programs. It proved successful, with tens of thousands of downloads at virtually no cost to the broadcaster.
These are a tiny fraction of the success stories we see today. We could canvass sector by sector to see how the Internet is proving enormously valuable to creators, consumers, and producers. But I want to turn to the question of what the Canadian government should be doing. I point to five issues as a starting point for discussion.
The first is Canadian networks. Canadian telecommunications networks were once the envy of the world. That's no longer, as we now rank far from the top in virtually every international ranking. Ensuring that Canadians have access to high-speed networks that rival current leaders like Japan and South Korea should be a top priority. I acknowledge that this is often perceived as an industry issue, but there is a critical heritage dimension here. We need to recognize that policies on high-speed networks and competitive wireless pricing are directly linked to new media success, since they are key distribution systems of Canadian digital content. This involves addressing several issues.
We need universal access so that all Canadians can access this new media.
We need to promote investment in fast fibre-to-the-home services so that Internet-based distribution models can take hold and remove the bottleneck that sometimes arises from either limited screen space or limited channel availability that has hampered some Canadian creators in the past.
Assist Canadians to become part of the creative and participative process. Many of us recognize that the line between creators and users is increasingly blurred today, and we need networks that facilitate both participation as well as consumption.
Finally, we need to ensure that we enforce network rules of the road, including net neutrality and traffic management guidelines, so that all content is afforded an equal opportunity and doesn't fall victim to limited access based on the kind of content or the program used to distribute it.
The next issue is digitization. I think there are few issues more central to new media policy than digitization. Most countries have recognized the need to ensure that national content is both preserved for future generations and made more readily accessible to the public. But in Canada, plans have languished to the point that it feels as if someone has hit the delete key on the prospect of a comprehensive Canadian digital library.
Our failure to keep pace has become readily apparent in recent years. Just by contrast, in September 2005 the European Union launched i2010, a digitization action plan. Several years later Europeana debuted—a website that provides direct access to more than 4.6 million digitized books, newspapers, film clips, maps, photographs, and documents from across Europe. The plan is to host 10 million of these objects by the end of this year.
By comparison, Canada is still largely stuck at the digitization starting gate. Library and Archives Canada was given responsibility for the issue, but was unable to muster the necessary support for a comprehensive plan. The Department of Canadian Heritage would seem to be a natural fit for a strategy designed to foster access to Canadian works. It has funded a handful of small digitization efforts, but has shown little interest in crafting a vision similar to what we see in Europe with Europeana.
The next issue is government as a model user. In recent years many countries have embraced open data initiatives, including both the United States and the U.K. Others, such as Australia, have adopted open licences to make sure that government content is more readily usable and accessible. We have started to see some of those same things in Canada at the municipal level. Cities such as Vancouver, Edmonton, and Toronto are leading the way.
Open government data is consistent with government transparency goals, and holds great economic potential by inviting Canadian businesses to add value to public data. Canadian policy should encompass principles such as open government data, the removal of crown copyright, and more open licences for government data, including things like government video, as well as a commitment to at least equal opportunities for procurement around open-source software. We should be, as a federal government, much like we see at the municipal level, talking about open data, open standards, and open-source software.
Fourth is cultural policy. Canadian cultural policy has long focused on the creation and promotion of Canadian culture. The government has already begun to shift much of its support toward new media and digital platforms. As we move from a world of scarcity, with limited bandwidth and difficulties in accessing culture, to one of abundance, where there is nearly unlimited access to culture, Canadian policies must shift as well from what I think are increasingly unworkable regulations that limit access to foreign content, toward efforts that back the creation and promotion of Canadian content.
In many ways, cultural policy is more relevant than ever. What we have to do is ensure that it becomes relevant by being effective in the current environment. In fact, with a new spectrum auction planned within the next couple of years, I think strong consideration should be given to earmarking some of those proceeds for a digital strategy, including digital cultural funding. We can use some of that revenue directly in this area.
Finally and fifthly, I can't help but deal with it: copyright. It goes without saying that copyright policy is an important part of a government strategy on new media. As part of that policy, I think it's absolutely crucial to ensure that we maintain in the online world the copyright balance that exists offline. This means that creators receive appropriate compensation and have the flexibility they need to be able to create. It means that users maintain their user rights. It means that companies don't face an intellectual property thicket when they attempt to innovate in this space.
I'd point to three key areas here. First off, Canada should implement the WIPO Internet treaties. That said, the WIPO Internet treaties offer considerable flexibility in how they are implemented, particularly around the issue of anti-circumvention rules--digital locks--a fact that was recently confirmed in a Conference Board of Canada report on intellectual property. This means that we can implement the treaties and link it to circumvention where there is actual copyright infringement.
Secondly, there is the issue of intermediary liability, largely thought of as ISPs. Frankly, I think this should be an easy one. Both of the digital copyright bills that we've seen in the past, Bill C-60 and Bill C-61, adopted the same approach: notice and notice. This involves a copyright holder sending a notification to an ISP, which is then obligated to send on that notification to a subscriber.
These notifications work. The Business Software Alliance has noted their effectiveness, as many users receive the notification and alter their conduct accordingly. In fact, recently, the Entertainment Software Association of Canada pointed to its own study, which found that 29% didn't respond to the notice, leaving an impressive 71% that did. I think those are pretty strong numbers.
Thirdly, there is fair dealing. Today, we all recognize that there is a problem with fair dealing. Everyday activities such as recording television shows or format shifting aren't covered. Artistic endeavours like parody aren't covered. Some teaching activities aren't covered, and innovative businesses can't rely on the provision either. This goes to the heart of new media creation.
The solution I'd propose, which I think is a clean, simple one, would be to add two words--“such as”--so that the current list of fair dealing would become illustrative rather than exhaustive, and we would build in flexibility, but--this is crucial--not lose fairness. It is fair dealing, not free dealing. Incorporating a “such as” provision would incorporate all the restrictions that currently exist within the fair dealing framework to ensure the uses are fair, but at the same time would ensure it is not limited to the narrow series of categories we currently have.
This is an exceptionally exciting period of time, I think, filled with potential for creators, consumers, and Canadian business. The Internet and the digital world offer new ways to meet the challenges of yesteryear, such as a lack of screen time, barriers in reaching an audience, and, increasingly, the high costs of production, particularly around distribution.
I think it's great to see this committee grappling with this important issue. I welcome your questions.
11:20 a.m.
Conservative
The Chair Conservative Gary Schellenberger
Thank you very much for that presentation.
Our first question comes from Mr. Rodriguez, please.
11:20 a.m.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
Merci, monsieur le président.
Mr. Geist, thank you for being here. It's always a pleasure to see you.
We shall come back now to our specific subject that is new media. One aspect which interests very much the Committee concerns the future of traditional media.
What is the impact of new media on traditional media more specifically on television as it is? We note that television faces huge challenges. Generic channels are facing huge challenges given the presence of many specialty channels. Fewer people are watching television while more and more people are turning to the Internet to meet the same needs.
I have a simple question to begin with: What is the future of traditional TV?
11:20 a.m.
Prof. Michael Geist
That's a simple question?
11:20 a.m.
Voices
Oh, oh!
11:20 a.m.
Prof. Michael Geist
I read with interest, as I'm sure everybody did, the CRTC findings as well as the report to the government this past week. I think the truth is that nobody knows for certain what it looks like.
I think what we do know is that we can't create policies that largely ignore the reality that is the Internet. If I had a criticism, for example, of the CRTC decision earlier this week, it was that I felt that it existed almost in a vacuum, as if the Internet didn't exist--as if we can create certain kinds of policies designed to support some of the broadcast television you're referring to, and assume that consumers will simply move in that direction regardless of what the costs happen to be.
Now, the CRTC argued exactly that in the report that followed the second day. They suggested that consumers are largely price insensitive and will continue to pay fees, no matter if they increase.
I must admit, I am skeptical. It may be true for a certain demographic of Canadians that they are both price insensitive and heavily reliant on broadcast television, and will continue to pay. But if I take a look at younger demographics in particular, I think they spend... Everyone knows they spend increasingly amounts of time online. In fact, they use that online environment not just for basic communication and access to culture and social media like Facebook, but they use it for what is effectively the equivalent of television. I use in this case even my own children as essentially my example of what I see is happening. If you ask them, take away the TV or take away the computer--and they're young, eleven and nine--it's an easy choice.
11:20 a.m.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
That's an excellent point.
Since you raised the subject of CRTC, what role do you see for it in this transition? The way I see it, CRTC is not in a position to make a decision concerning new media and the new environment.
For example, should the Broadcasting Act be reviewed? How do you see the role and also the authority of the CRTC in that context?
11:20 a.m.
Prof. Michael Geist
Last year was obviously a very busy one for the commission, where they were looking at broadcast as well as some of the telecommunications issues. What I thought became readily apparent, particularly as part of the telecom discussions when we were talking specifically around things like network neutrality and the guidelines that Internet providers have, is that you had groups like ACTRA and many other creative groups up there wanting to talk about the impact those telecommunications rules were going to have on what most of us would conceive as broadcast--on that ability to take content and ensure that it's available on all the various platforms.
The commission was very reluctant to do that. They said we're talking about telecom here, and there are separate hearings for broadcast. What I think has become increasingly apparent is that the silo approach of regulation saying this is broadcast and this is telecom is almost completely broken down. I think the ability to distinguish between these two and say the restrictions and the rules that apply in one sector don't apply in the other is a problem. The CRTC finds itself often really bound in that regard, and having trouble dealing with that.
In an ideal world I think we would revisit, frankly, the separation of those two acts and come up with a broader communication act that recognizes that it is certainly true today, and it's only going to be more true in the future, that distinguishing between what we see as conventional broadcast and what we see as telecom are virtually indistinguishable.
11:25 a.m.
Conservative
The Chair Conservative Gary Schellenberger
You have ten more seconds... Okay.
Madam Lavallée, please.
11:25 a.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Mr. Geist, thank you very much for being here. Your coming here is very much appreciated particularly for all your remarks about the digital world and also copyright. They are well known and understood.
And it is in this context that you advanced ideas about what this government should do. You laid the groundwork for a future global strategy for transiting into a digital universe. I am pleased that you have also included copyright because it may not be obvious to everyone that we cannot switch to a digital world without first solving the copyright issue.
In completing your answer to Mr. Rodriguez, you made reference to a bill. Would you not agree that before moving forward with a bill, this government, which has to date provided band-aid solutions to pressing needs, should instead elaborate a broad global strategy for transiting to digital based upon what we have at the present time? This should be put together to create a vision allowing everybody to feel that they are all moving in the same direction together, including consumers who are facing important challenges at this time.
11:25 a.m.
Prof. Michael Geist
We're in absolute agreement that there is a desperate need for a national digital strategy. I would note that the five areas that I highlighted aren't designed to be comprehensive. When we talk about a digital strategy, I think digital strategy involves a number of other areas as well.
What I've heard from the government, paying attention to the Speech from the Throne and some of the things that the industry minister has said, is that strategy may be forthcoming. So I think a lot of us are waiting with bated breath to see precisely what the government has in mind.
I think you're right, that it is long overdue, and I don't think it's just this government. I think, in many ways, we've spent about 10 years going sideways, doing virtually nothing. If you take a look back, from a digital perspective, we had a very solid strategy in the late 1990s. At the time there was an industry minister, John Manley, who was in that same position for a long time. He took it as one of his issues, and it laid the groundwork for a whole series of policies, from privacy legislation to ensuring that all school were connected to a whole range of different things. I think it was a very positive development.
We have spent the last 10 years, through successive governments from both parties, not doing very much. I think the kind of declining rankings that we see, let's say in the telecom area, is a direct result of that. It's almost resting on our laurels, as it were. So I absolutely agree.
You mentioned the need to deal with copyright. I certainly agree with that, and I also hear from the Speech from the Throne that it's happening. I would note that one of the criticisms we saw when the last bill was introduced, in terms of Bill C-61, aside from the substance—I'm happy to talk about the substance, of course—was the lack of public consultation on this issue. In fairness, last summer the government conducted what was, I thought, the best, most open copyright consultation we have seen. More than 8,000 Canadians took the time to respond to that consultation.
If anything, it provides our elected officials with a clear indicator that this matters, certainly to creator groups and to industry groups but also a huge amount to individual Canadians as well. When you do a government consultation in the middle of the summer and 8,000 people turn up to submit their views, this matters.
11:25 a.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
By the way, public consultation on copyright did not fare without some problems. In fact, the members of the Canadian Private Copying Collective had to fight to be invited, which is rather strange. I am afraid that this could suggest that the government has a tendency to ignore people who would present opposing views.
In regards to copyright, I have a sense that legislation will come soon. Some even say as early as June. According to you, what should be the most important changes to the present law to align it with digitization?
11:30 a.m.
Prof. Michael Geist
We hear much the same kinds of things. I actually do think that the consultation, just to close on that, was open. It's true they had these round tables, but anybody who wanted to submit something could. I received so many e-mails from, especially, younger Canadians who indicated this was the first time they had participated in a government consultation. I thought it was encouraging not just to see the numbers but also to see that it was bringing younger people, who traditionally may have been seen as more apathetic when it comes to policy and the political process, and getting them involved. So I thought that was quite a good thing.
In terms of the specific issues, during that presentation, I actually tried to highlight three. One is the WIPO Internet treaties. I think there have been some people who've disagreed with the treaties themselves and the need to implement. I think, in a sense, that train has left the station. I think we are now at a point where everyone is in agreement that we need to move forward on those treaties. What becomes crucial, though, is that the devil is in the details with those treaties and they provide considerable flexibility. I think we need to ensure that they're implemented so that there is the appropriate protection in the digital environment, but, at the same time, we have to ensure that the flexibility that exists in that treaty is reflected in Canadian law as well. And I think that means linking people who pick the digital lock, who circumvent technologies, to instances of copyright infringement.
Someone who circumvents, let's say, to protect their personal privacy because they're concerned someone is looking at their listening habits, let's say, and using a digital lock to facilitate that, I think ought to have the ability to circumvent that lock. It's not copyright infringing, it's ensuring that their privacy is appropriately protected. On the other hand, someone who circumvents so that they can burn 1,000 DVDs and sell them on a street corner, the law ought to be able to come down hard against that and it clearly ought to apply. That's one.
The second issue has to do with the role of intermediaries, of ISPs. As I mentioned, in the prior bills the approach that we've seen is one of “notice and notice”, and I think it's proven effective. If think the “notice and takedown” approaches that we've seen in some other countries have proven highly problematic. And, even worse, the approaches that a couple of countries have begun to experiment with, where they would literally kick people off the Internet, the three strikes approach, I find to be completely disproportionate. They run counter to the very policies we're trying to implement from a digital strategy perspective.
Third is the issue of fair dealing. I think fair dealing becomes, in many ways, more relevant in a digital environment. There's litigation right now, in British Columbia, where there were creators who did a parody of a newspaper and were sued by that newspaper on copyright grounds. They turned around and said, hold on a second, it's an obvious parody. It's not a copy of that newspaper. And the court said, sorry, fair dealing doesn't cover parody. We're more than 20 years past, almost 30 years, with the VCR and it's still not legal for a consumer to record a television show.
I think those kinds of things make the act seem completely anachronistic. If we're going to update into the digital environment, we need to provide much-needed flexibility into that fair dealing provision.
11:30 a.m.
Conservative
The Chair Conservative Gary Schellenberger
Thank you.
You went a little over your time.
We'll go to Ms. Leslie, please.
11:30 a.m.
NDP
Megan Leslie NDP Halifax, NS
Thank you, Mr. Chair.
Thank you, Mr. Geist. We're really lucky to have you here to share your expertise with us. While you have expertise on issues, I actually want to tap into your expertise on, I guess, the digital world and the politics of the digital world.
We are having this study, and the approach of the committee is to look at the role of the federal government. So I want to ask you what your thoughts are on what we're doing. What are maybe some pitfalls or some dangers we could avoid here? How would we do that? Do you have any advice for us on how we're actually moving forward with this?
11:30 a.m.
Prof. Michael Geist
As I mentioned off the top, I think it's a good thing to be doing. It's a great thing. It's an important area, and the extent to which the committee can help feed into a broader digital strategy I think is very useful.
I guess if I take a look at the last five years or more of discussion on digital issues, whether in committee or more generally, there is a tendency, and it's natural, to hear from what we might see as the usual suspects. I think it's unquestionably important to hear from those established players. But I think we also need to recognize that much of the innovation that is taking place in this space is not coming from those traditional players. In fact, many of them are struggling to keep up. To come up with a relevant study that really looks at the opportunities as well as at some of the challenges, it becomes absolutely essential to ferret out and identify some of those more innovative players. In many instances, that's not easy, because we're not talking about household names.
People have heard of EA, Electronic Arts, the large software company, let's say, which is hugely successful. Polar Mobile is less well known. But the growth of Facebook applications and iPhone applications is a massively fast-growing market, one that is very innovative and that has such low barriers to entry that it provides tremendous opportunities for Canadians to compete. It's identifying those kinds of players. It is the smaller record labels or the more innovative record labels out there that recognize the challenges and the tremendous opportunities. They are gearing their business approach towards embracing the Internet as opposed to trying to find ways to keep it from entering into their business plans.