Canadian Heritage Committee on Feb. 7th, 2011

[Charles Vallerand]

Oh, oh! It is not a simple issue.

These negotiations are being led by trade officers and not by culture or UNESCO international relations officials. When the mindset is trade-oriented and the goal is to expand trade as much as possible, you do not close doors and you try to see just how far you can push them open.

The European Union has a relationship with its member states and therefore must work with them to properly define the scope of both its agenda and any potential exemption. It is indeed surprising that there is no one single position. It is as if the right hand had ratified the UNESCO Convention while the left hand is keen to focus on a trade agenda. This is what I meant when I mentioned consistency earlier on. Canada, on the other hand, has had a clear and consistent position for the past ten years. We know what our goals are and we have always adopted the same approach to bilateral negotiations for trade agreements and legal texts.

[Roger Pomerleau, Bloc, Drummond, QC]

Fine.

I will now give the floor to my colleague.

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

Mr. Drapeau, you have urged us to sign ACTA. You say time is of the essence but at the same time you have told us that it is not binding.

Last year, there was what can only be called a worldwide uprising among civil society, which was very concerned about ACTA. What should we take away from this?

[Daniel Drapeau]

I am not urging you to sign ACTA as quickly as possible. I am asking you to consider and correct the shortcomings of our own anti-counterfeit system. This will bring us into compliance with ACTA standards.

You should not lose sight of the fact that ACTA is really a group of countries paying lip service to minimum standards that they can easily get around. However, it all looks very good—

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

For instance neither ACTA nor Bill C-32 cover the Internet providers you were talking about earlier. However, you are asking us to sign up as early as possible.

[Daniel Drapeau]

No, I am not asking you to hurry up and sign ACTA and I do not wish my testimony to be interpreted in this way.

ACTA requires Internet providers to disclose the identity of the counterfeiter. This is very relevant in Canada because of the Federal Court of Appeal ruling in BMG Canada Inc. v. John Doe (F.C.A.).

In Canada this is of particular relevance, because the only case we've had in which an Internet service provider was called upon to disclose the identity of an infringer is the BMG case, which was decided by the Federal Court and then went on appeal. The end result is that the Internet service provider was--

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

I am sorry to interrupt but I only have a limited amount of time. If I understand correctly, you are saying that section 19, which amends the Access to Information Act, requires specific businesses to disclose the identity of offenders. I will have to find the actual section but I think you are referring to section 21. This section could also apply to Internet providers. It would be a pleasure to give you the information.

[Daniel Drapeau]

Yes, but in what situation would it apply?

[The Chair, Conservative, Michael Chong]

Thank you Ms. Lavallée.

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

The Access to Information Act.

[The Chair, Conservative, Michael Chong]

Mr. Drapeau.

[Daniel Drapeau]

This is an intellectual property infringement and I would therefore suggest that it be enshrined in intellectual property legislation. Bill C-32 in its current form does not provide for this requirement. It is not easy to obtain from the Federal Court either since it is only possible through an equitable Bill of discovery.

an equitable bill of discovery.

[The Chair, Conservative, Michael Chong]

Thank you very much.

Lastly, Mr. Del Mastro has a short intervention to make.

[Dean Del Mastro, Conservative, Peterborough, ON]

Yes. Thanks, Mr. Chairman.

I was all prepared to be your charged-up fighter here, a street fighter on trademark, until you kind of dumped all over Bill C-32--

[Voices]

Oh, oh!

[Dean Del Mastro, Conservative, Peterborough, ON]

--and then I thought I had better spend my time bringing you up to speed on Bill C-32 instead.

You see, in Canada I think there are a couple of things. ISPs have been determined to be essentially infrastructure in Canada; in other words, they're the Internet super highway. We don't send the police out to charge the highway when somebody is speeding; we go after the driver. That's the approach we have taken in Canada--

[Daniel Drapeau]

The Federal Court has found liability for flea market vendor operators: people who rent premises to people who sell counterfeits have been found liable. It's the same principle.

[Dean Del Mastro, Conservative, Peterborough, ON]

Right, because they knowingly.... I don't think it's quite the same, but I agree that it's an instance where that has occurred. But I would argue....

There are a couple of things. Also, on statutory damages, for commercial infringement there is no limitation for statutory damages. In fact, it's much, much higher. It doesn't start at $5,000, is what I'm saying.

This is private. This is for individuals for statutory damages. But I think $5,000 is a lot of money. We can debate whether it should be more. Some groups have come forward, including industry associations, and have said that statutory damages can in fact start at a much lower level than this and they think it's important that we establish statutory damages. What I would argue is that the main groups--

[Daniel Drapeau]

But the point is that the message you're sending out is that you're lowering damages. You're going from $20,000 to $5,000.

[Dean Del Mastro, Conservative, Peterborough, ON]

We're actually making it applicable for opportunities where it does not apply right now. It's important that it's established in law.

I think you need to understand what the complexities in copyright are. There are two main groups that will oppose copyright no matter what. There's a group on the left that I call the “sticking it to the man” group. In other words, they don't want industry to make any money. Whatever you try to do that might push money into industry, where somebody might make money, they don't like that.

The other side is the extreme right. They're the libertarian group. They're the “stay the hell out of my life” group.

Those are the two groups, right? Most people are somewhere in the middle. But if you want to appeal to the voters on either side of that, then you take a position that is inherently opposed to them.

Now, most of the interventions I'm hearing at Bill C-32--certainly a lot of them from my colleagues opposite—seem to be appealing to the sticking-it-to-the-man group. They're very concerned about the creators. But whenever you talk about trying to re-establish a marketplace or an opportunity for groups to earn money legitimately, that doesn't appeal. What we need instead is a system of levies, taxes and so forth, that we can send out through various bodies, because we all know you can't have a marketplace. I actually think that's....

Unfortunately, your comments will be interpreted as being against Bill C-32, because you don't believe that Bill C-32 does anything to re-establish a marketplace. And that's unfortunate.

[The Chair, Conservative, Michael Chong]

Thank you very much, Mr. Del Mastro.

I want to thank Monsieur Drapeau and Monsieur Vallerand for their testimony....

Mr. Angus.

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

You know, I have to ask why this meeting unfolded the way it did, Mr. Chair. I'm actually somewhat surprised by it.

We had two witnesses. One spoke, we had a round of questioning, and suddenly the second one spoke.

I thought, “Well, now that we're starting a second round...”, but it was still the first round. He suddenly spoke in the middle of the first round.

And now it's over. I would have asked him questions, but I had nothing to ask him. I couldn't ask him questions without hearing his testimony--

[The Chair, Conservative, Michael Chong]

Well, there was a misunderstanding on the part of the chair, for which I apologize.

I understood that....

[An hon. member]

Chair, he can take a few minutes.

[The Chair, Conservative, Michael Chong]

Can I finish what I have to say?