Canadian Heritage Committee on March 25th, 2010

[Prof. Michael Geist]

Just to clarify, in terms of BitTorrent being a great success, I was actually saying that CBC was a great success for using BitTorrent, although clearly BitTorrent is a very popular protocol and is successful in the sense that a lot of people use it, although some people understandably have problems with some of its uses.

I would note, though—and I'll address both who uses it and then the ISP side—some of the most outspoken groups that we saw before the CRTC on the traffic management hearing, related to ISPs, were creator groups. There were documentary filmmakers, ACTRA, and CFTPA, who are all out there saying for us, we see things like BitTorrent as an alternative distribution model that provides actually a very cost-effective mechanism for distribution and a means to ensure our work gets out there. I think there is increasingly a recognition that this is useful for many things. There is of course an infringing on authorized activity, but there is lots of authorized activity as well.

In terms of ISPs and their relationship with this sort of content, I think they have a bit of a love-hate relationship with it. Obviously, when you take a look at ISPs that are promoting ever-faster speeds, and say you can download quicker, no one is kidding anybody. They're talking not just about a basic webpage like a newspaper or my website, they're talking about the ability to access content whether streamed or sometimes available through things like the BitTorrent protocol. It's been a driver of customers, to be sure, but it also is an increasing user of bandwidth.

The concern that comes up in the context of ISPs—not to go through the whole CRTC hearing again—is one in which many of these ISPs also have a video arm as well, video on demand, or cable distribution and in a sense, there is the potential for competition between those video services and other means of distributing, including streaming and BitTorrent. One of the real concerns is if what you're looking to do is try to ensure that independent creators in particular have the ability to use these alternative distribution systems, you've got to ensure that the platform itself is treated in a neutral enough fashion. You can't have certain kinds of content that is in the self-interest of the provider being able to promote on a faster lane or what have you, and the other stuff being relegated to a slower lane or being throttled in the way we're seeing today. I think that's a big issue.

In terms of promoting Canadian content, let's recognize the fact that there is an unprecedented amount of Canadian content online. But there is also an unprecedented amount of American content online, and French content online, and U.K. content online, because there is simply an unprecedented amount of content being created today. That's a good news story. The challenge, you're right, is how to find some of these things. Are there programs we could think about? I'm sure there are. I think the reality is that success stories sometimes are by design, sometimes are by fluke—there's any number of ways why certain things go viral and people find success stories. When I look at the Têtes à claques of the world, when I look at some of the other sorts of things, they have found great success, and they've found it doing it online. If the traditional notion of Canadian cultural policy was let's ensure Canadian content is being created, I think it's being created. In some ways, we've got a big success story happening right now.

[The Chair, Conservative, Gary Schellenberger]

Thank you for that.

We'll now move over to the Liberals. Mr. Rodriguez and then Mr. Simms.

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

I'll just take a minute and then pass it over to Mr. Simms, because Mr. Rajotte raised the Amazon question.

I do not think that the existence or the role of Amazon is the issue because we see that it plays an important and useful role. It concerns more the physical presence of Amazon in Canada. In this case, it would be simply through a warehouse and not through direct sales. Thus, Canadians could order their books online and receive them from the Canadian warehouse.

However, many people say that it is a backdoor entry to get around the current legislation forbidding foreign interests from selling books. So, starting with the establishment of a warehouse followed by direct sales to Canadians would be a way of getting around the current legislation.

Is it your opinion that this would not be a bad thing and that we should eventually change the law to allow foreign companies to own bookstores, for example, and to make direct sales to Canadians?

[Prof. Michael Geist]

First, my understanding is that Amazon is the second-biggest online seller. I think Chapters/Indigo is still number one. If you were to ask Canadians who have purchased from Amazon.ca whether they know if Amazon has a distribution arm in the country, I don't think there's practically anybody who would know whether they have or not. So this idea that we're debating—whether or not Amazon should be able to come in... Amazon is here, and they've been here for eight years. Whether they've had a distribution arm physically in the country or not has been immaterial to consumers. As I said, I think there's been net benefit to authors and publishers in the fact that they are here, because their work is available.

Frankly, the risk that they are going to set up physical space in Canada is a non-existent risk. First of all, I don't think it's a risk. If we get more competitors into the space, I don't necessarily see it as a bad thing. Given that Amazon has never, to my knowledge, set up a physical store anywhere, I can't imagine why they would start here in Canada. Their whole model is based on not having physical stores. Their whole model is to get into place the efficiencies of being an online seller. The idea that this is a backdoor mechanism to set up a corner Amazon store runs completely counter to 15 years of what that company has been doing.

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

But it wouldn't necessarily be Amazon. It could be any other company, but using this to get into the market eventually. That's what you hear from some people, so I'm asking.

[Prof. Michael Geist]

That's a fair point. There may be others who do it.

At this stage, I guess I would ask what we are afraid of exactly. I think there are positives and there are negatives with respect to the big sellers, including the Chapters/Indigo type. I hear from many smaller publishers and authors who have many complaints about some of those big stores, and others who say they appreciate the fact that they're readily available.

This may sound a bit hokey, but I looked at the way Canada was during the Olympics—this proud, confident country, not afraid to be out there saying we're Canadian. I think it was fantastic. We all loved it. I would love to see that kind of energy and confidence in other areas, and it seems to me that a policy that expresses real concern that a foreigner might own a bookstore and that this might somehow harm a Canadian author or a Canadian publisher runs completely counter to the kind of confident country that I thought we saw in Vancouver last month.

We have nothing to be afraid of. I think Canadian authors and publishers are world-class. I think they are well established, and that there's no reason to think that even a foreign-owned book seller is going to change any of that.

[The Chair, Conservative, Gary Schellenberger]

Mr. Simms.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Thank you.

I have a problem with digitization in my area. It is not 100% penetrated by broadband rural access. We've talked about this before. Digital literacy is a huge issue for me, in the sense that the government is becoming more open, using e-government. They're saying now that people are applying for EI online now, we don't need these extra... But there are so many people isolated by that, who are not digitally “literate”, if I can use that word.

I only say this as a comment, to get your comments on it.

The second part, and I'll let you go from here, is that you use a lot of international models, and ones that make a lot of sense. You mentioned “notice and notice” as an example used successfully in Europe, and “notice and takedown” as used not so successfully. We're now engaging in a comprehensive trade agreement with Europe, and I suspect that our being behind in copyright is not going to bode well in these discussions or any other discussion that is considered to be part of a comprehensive trade agreement.

These are two different issues entirely, but...

[Prof. Michael Geist]

On the issue of skills—we had a chance to talk about it earlier—I'm in complete agreement. Any digital strategy has to include a skills component and to recognize that the digital divide is both one involving access—the sense of being able to access the network—but also involving the capacity to use the network. So I agree absolutely.

Notice and notice, just to be clear, is actually made in Canada. It's not a European model; it's a Canadian model.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Did you not say that it was used in other jurisdictions successfully, or were you talking about our own jurisdictions?

[Prof. Michael Geist]

No, it's used successfully right here. The way notice and notice has worked is that it's actually been an informal agreement among ISPs and rights holders in Canada for the last number of years.

I get e-mails fairly regularly from people who have received one of these notifications saying--for instance, you're alleged to have downloaded a movie--and want to know what to make of it. You explain to them what to make of it.

That's in place right now in Canada, and it has worked. So in fact, this is a made-in-Canada project that others are looking at and about which they are saying that it works quite well.

I'm glad you raised the issue of CETA, the comprehensive Canada-European Union trade agreement. As well, I should note ACTA, the Anti-Counterfeiting Trade Agreement. I would argue that both of these pose an enormous challenge to Canadian domestic sovereignty when making a made-in-Canada approach on some of these issues.

With respect to ACTA—the entire ACTA leaked earlier this week—the kinds of changes that would be required in ACTA would take away much of the discussion we've just had. In effect, the secret meetings that are taking place in different places around the world would ultimately dictate what Canadian policy looks like in copyright, rather than allowing us to have a true made-in-Canada solution.

The case of the European treaty is frankly even worse. If you pay attention to my blog, probably tomorrow, you will likely see a link to a leak, because someone sent me earlier this week—I'm telling you candidly—the entire intellectual property chapter, at least as it currently stands.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Is this for the current negotiations?

[Prof. Michael Geist]

Yes. Things seem to leak. I don't know who it was; it was an anonymous source, but someone provided it to me.

I will tell you that this would fundamentally reshape not just copyright, but patent and trademark as well. In many ways what the Europeans are demanding is that Canada alter its intellectual property laws in all areas to match and almost mirror what the Europeans have done—everything from extending the term of copyright to providing new levels of protection for all sorts of patent-related issues and requiring us to join new treaties.

This is as comprehensive a change to Canadian IP law as I think we have ever seen. And yet the truth of the matter is that the EU negotiations are at the moment largely below the radar screen, and few recognize that in a sense what we have spent much of the last 90 minutes discussing—the idea of a made-in-Canada approach that ensures we meet the needs of Canadian creators and Canadian consumers—is largely being negotiated in these two trade agreements without anybody seemingly having a say at all.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Do I have time left?

[The Chair, Conservative, Gary Schellenberger]

You have time for one very short one. I'm being generous.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

I'll let it go. My question is much longer than that.

[The Chair, Conservative, Gary Schellenberger]

Okay. That last one was a long question.

As chair, I have just a couple of things to say. I'd like to have a little time.

I have spoken to Ian Wilson on various occasions. He is former head of the National Library and Archives of Canada. He not only put the two entities together, but he tried to digitize the contents of the library and archives.

Having said that, I hope as we go forward that those things can be done. I think that relates to some of the things you said earlier.

I know, having sat on the heritage committee for roughly seven years, that WIPO has been before this committee I don't know how many times. I think it was signed back in 1996 or 1997.

Should that WIPO treaty be signed before we go any further?

[Prof. Michael Geist]

No. In many ways, some of the things that we see coming out of WIPO are actually past their best due date. I don't think they have worked well. That said, I also recognize that there is pressure to do it. We did sign it. That doesn't obligate us to do anything further, but the practical reality is that we need to move forward.

No, I think that ensuring that we get the right copyright bill—one that is going to last, so that you don't spend another seven years having to debate these same kinds of issues—means that we incorporate not just WIPO issues but other issues, such as fair dealing.

I can't emphasize this enough: it's not just about being able to say that we're WIPO-compliant; it's about ensuring that we are WIPO-compliant in a way that tries to preserve the balance. There is a good way of implementing WIPO, in my view, and a very dangerous way of implementing it, one in which we alter the balance.

Let's do WIPO, but let's do it in a made-in-Canada way that is compliant with the international obligations but that tries to preserve the fundamental principles and values we have associated with copyright as well.

[The Chair, Conservative, Gary Schellenberger]

Thank you very much.

I must say that this meeting has been very enjoyable. I thank you for your candid answers.

The meeting is adjourned.