Okay--
Evidence of meeting #8 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.
Evidence of meeting #8 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.
12:15 p.m.
NDP
12:15 p.m.
Conservative
The Chair Conservative Gary Schellenberger
Okay. We have to move on. Again, we keep going over time.
Mr. Del Mastro, please.
12:15 p.m.
Conservative
Dean Del Mastro Conservative Peterborough, ON
Thank you very much.
Well, we had a little discussion on emerging and digital media, and a copyright discussion broke out. It seems as though, despite the fact....
What I had really hoped for, and what I think we're hoping to do, to steal a phrase from Star Trek, one of my favourite shows when I was a kid, is to boldly go into this new universe and leverage all the opportunities there are for Canadian artists to expand their reach and to in fact enrich them from a monetary perspective. Also, we want to make sure that there's greater access, more enhanced access, to Canadian artists within Canada and beyond.
I think that's really where we want to go with this. We want to come up with a strategy and recommendations for the minister and the government to help us take advantage of these opportunities.
With respect to copyrights, I understand that they're part and parcel of this. I understand that you want an environment in which, as you said, good fences make good neighbours. You want to know what the fences are. I understand that. In Canada, we've been working since 1996 to update our copyright laws. That battle continues.
There are a couple of things I want to ask. I'd like to play a little bit of the devil's advocate with you, not because it's my position, but just to give me some idea of what you deal with when you're talking about copyright.
On the issue of fair use or fair dealing or “such as”, part of the reason we have to rewrite a copyright bill is that technology has changed, and our copyright bill is no longer protecting copyright holders. We have the problem of illegal redistribution in Canada. Other jurisdictions see us as a violator. I've met with those other jurisdictions. I'm sure that other people around the table have.
If we don't create a bill that is somehow adaptable in some way, we'll be back in this position. We might be back in this position much sooner than we were last time, because technology changes much more rapidly now than it did even a few years ago.
If we're not prepared in any way to look at fair dealing or the way fair dealing is written, what would lead you to believe that the next copyright bill would be any more prepared for or adaptive to emerging technologies than the one we have before us right now? Why wouldn't we be back in this position in a year or two or whatever?
12:20 p.m.
General Counsel and Director, Policy and External Affairs, Access Copyright
I think it goes back to the question Mr. Coderre asked earlier.
There is just so much we can do in predicting the future without creating a significant risk for the rights holders of actually taking away what we're trying to build for them. On the one hand, we want to strengthen copyright so that they can in fact monetize their work in the digital environment and come up with new business models. On the other hand, we're going to create an exception that is vague and open-ended and that we're going to give to the courts so they can figure out how it will play itself out in the marketplace. We're almost giving with one hand and taking away with the other.
There's just so much we can do in trying to deal with the unpredictable future. One important thing that comes up often in our world, and that I have seen in many other industries, is that people confuse “access” with “free”. Copyright collectives, for example, can be used to deal with that uncertain future and ensure that there is access to the use of works.
A private copying regime is a type of collective administration of copyright. It ensures that there is compensation on the one hand and use on the other hand. Perhaps there are other tools that exist, without our creating this big open hole that will seriously undermine the strength of the copyright.
12:20 p.m.
Conservative
Dean Del Mastro Conservative Peterborough, ON
I guess I have a little different take on it. Mr. Angus accurately outlined my opposition to a levy on digital storage devices. I actually think that if you cut out illegal redistribution, that becomes redundant. That's my view.
I would agree with Mr. Rollans that most of the levy regimes really contribute small amounts of money in a vast industry. I think establishing the playing field properly, and correctly setting up the business model.... I have no qualms conceding that the business environment right now in Canada is not what it should be, when people can access things for nothing, reproduce them for nothing, and transmit them for nothing.
I think that's a problem, but I believe--
12:20 p.m.
Bloc
12:20 p.m.
Conservative
12:20 p.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
That's good, now; that's fine.
I heard nothing of what you said, Mr. Del Mastro. That's too bad.
12:20 p.m.
Some hon. members
Oh, oh!
12:20 p.m.
Conservative
Dean Del Mastro Conservative Peterborough, ON
Just to come back around and close the circle, your position is that fair dealing, as known or as indicated in the act from 1988, I believe.... That is your position on fair dealing? Would you make any changes to fair dealing? Is there any way you would look at it and say that here's something we can change?
I think there are a number of things we need to look at, whether it's a mandatory statute review of copyright every few years so that we don't actually have to rewrite a bill every time, so we could actually review it and change it.... These sorts of things I think should be in any form of copyright regime. But I also think we should be prepared to look at something like fair dealing and say, how do we make sure it's reflective, providing protections, but is also in some way consistent with the time?
April 20th, 2010 / 12:25 p.m.
General Counsel and Director, Policy and External Affairs, Access Copyright
One thing I'd like to point out is that this challenge you're outlining is a challenge that pretty much every country looking at their copyright acts has to live with all the time. Everybody is dealing with this, yet we have less than a handful of countries that have an actual “fair use” exception. We have another handful of countries that have a “fair dealing” exception with a narrowed-down list, or an exhaustive list. It is a challenge that exists everywhere.
A mandatory statutory review perhaps would be a way of making sure the bill continues to be up to date. But I think what's very dangerous, and what we do not recommend, is the challenge of trying to identify which uses can be made without compensation without it being handed to the courts. I think that's what happens under fair dealing. And that is the bottom line.
12:25 p.m.
Conservative
12:25 p.m.
Liberal
Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL
Thank you, Mr. Chair.
Some of the material that you've put out there--this is for Access Copyright, by the way--says that “an open-ended fair dealing provision...puts in the hands of the courts what should be determined by Parliament”. That being said, two pieces or two court rulings that have been very important to this debate over the past little while, and that get cited quite often, include Théberge and CCH v. Law Society of Upper Canada, which many of us refer to.
In the ruling, they stated, “The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” So obviously, they delved into this by talking about the balance. They say, “Excessive control by holders of copyrights and other forms of intellectual property may...create practical obstacles to proper utilization”.
Is this what you're talking about when you say that it's left up to the courts? First of all, in that ruling, do you agree or disagree? Do you think that's excessive for a court to say?
12:25 p.m.
General Counsel and Director, Policy and External Affairs, Access Copyright
No. I think that is correct. There is a balance between the user and the copyright. I don't think that is inappropriate for the courts to say.
But the one thing the CCH case did, for example, is look at a series of conditions, or criteria, six of them, to determine whether the use in that particular case was fair. The court said the impact on the market--and there are a whole bunch of these, how much of the work was used, etc.--is a condition, an important condition, but it's by far not the most important condition.
I wonder how this committee would feel about an exception where there is an important impact on the market. Some of the things the court was not able to look at were the impact on innovation, the impact on jobs, the impact on creativity, the impact on cultural policy--
12:25 p.m.
Liberal
12:25 p.m.
General Counsel and Director, Policy and External Affairs, Access Copyright
In this decision or in any decision.
12:25 p.m.
General Counsel and Director, Policy and External Affairs, Access Copyright
It is very difficult for the court. The court does not have the impact analysis that is usually part of policy-making and changes in the legislation. That is part of the process when law-making happens, when there's a change in policy.
With fair dealing, and with an expansion of fair dealing, what we're saying is that we're going to leave it up to the courts to determine whether or not a use has to be compensated, whether it should fall into an exception under fair dealing, or whether there should be payment, without all of this impact analysis that would usually happen before a new exception is created in the Copyright Act. That is what's very concerning.
12:25 p.m.
Liberal
Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL
So what you're saying is that by injecting into legislation the “such as” phrase, and trying to be more illustrative.... Sorry, it's a little bit of both, I suppose. But in trying to illustrate an example of infringement, what you're saying is that it's not a good way to go because we box the courts into corners. Is that correct?
