Canadian Heritage Committee on Nov. 29th, 2022

[The Chair, Liberal, Hedy Fry]

Clause 22 carries.

(Clause 22 agreed to: yeas 7; nays 4)

Shall clause 23 carry?

I'm hearing a no. Please call the question.

(Clause 23 agreed to: yeas 7; nays 4)

Clause 23 carries.

Now, should clause 24 carry?

[Rachael Thomas, Conservative, Lethbridge, AB]

Absolutely not.

[The Chair, Liberal, Hedy Fry]

Am I am hearing a no, Mrs. Thomas?

[Rachael Thomas, Conservative, Lethbridge, AB]

It's a massive no. It could not be larger.

[Voices]

Oh, oh!

[The Chair, Liberal, Hedy Fry]

That's fine. Okay.

Can you call the question please, Clerk?

(Clause 24 agreed to: yeas 7; nays 4)

Clause 24 carries.

Now we have a proposed new clause, clause 24.1. We have amendment CPC-15.1.

Go ahead, Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

This is the insertion of a new clause following clause 24. It has to do with copyright. It's just to add further clarity. It states that, “Section 24 does not limit the right of quotation of any party.” That is our amendment.

We feel this is very important—and we heard from numerous witnesses that it was—because it would allow people to use a small quote from a source in their social media posts, for example, without being penalized for doing so. We feel that's very, very important.

I think it's also important to note that we did hear from quite a few witnesses with regard to the Copyright Act, and concerns were raised. Most notably we heard from Michael Geist, who is a professor and a lawyer who actually specializes in copyright law. I feel that his voice is probably one of the most authoritative in the country with regard to this topic.

He said that essentially clause 24 means that certain parties don't have rights of quotation. That would have to be somehow set aside in the negotiation process, which seems wrong. He also raised concerns with regard to what this would mean in terms of international agreements and international copyright law. He also noted that this is not found in the Australian legislation that Canada's heritage minister, Minister Rodriguez, has claimed he is fashioning this bill around. We've noted other areas in which the government has departed from the Australian legislation, actually in a negative way, and has actually taken liberties that are quite likely setting this bill up for a charter challenge at minimum, if not further challenges.

With clause 24 in its current state being a violation of international law and the Copyright Act, we're looking to bring further clarification and essentially contend for Canadians' ability to share small amounts of content in a quoted format within their social media platforms.

I will leave it there for now and perhaps revisit it in a moment.

[The Chair, Liberal, Hedy Fry]

Is there any further discussion?

Go ahead, Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much, Madam Chair.

This amendment was written with the idea that Bill C-18 somehow violates international copyright agreements like the Berne Convention, but I'd like to remind some colleagues of the testimony we heard that dispelled copyright-related concerns about the bill.

This is from Professor Stephens, who said, “criticisms that Bill C-18 will violate Canada's international trade obligations, including the Berne copyright convention...do not stand up to scrutiny.” He also added there is no “strong legal argument to challenge the bill under either CUSMA or Berne.”

Further, Mrs. Thomas talked about the charter. I don't believe we heard any evidence about charter concerns either. This is a respected expert on the subject.

We are opposed.

[The Chair, Liberal, Hedy Fry]

Thank you.

Go ahead, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Madam Chair.

I want to raise one comment Mr. Bittle made. I think this amendment is actually detrimental to what Mrs. Thomas seeks to achieve.

Basically, the argument here is that there is no violation of the Copyright Act, the Berne Convention or anything else. Saying “section 24 does not limit the right of quotation” implies section 24 is intended to limit other sections of the Copyright Act, because you're only carving out one exception.

I would like to ask Mr. Ripley whether that is a possible interpretation. By saying that section 24 explicitly does not do this, might it then imply it's intended to do things it was never intended to do?

[Thomas Owen Ripley]

Indeed, the government had to consider the relationship between this piece of legislation and the Copyright Act. The decision was made that essentially the Copyright Act will continue to stand alongside this piece of legislation and that this piece of legislation would not, in any way, limit the scope of the rights, limitations and exceptions provided for under the Copyright Act. That's why you look at.... Actually, most of these provisions are “for greater certainty” provisions.

Section 24 was explicitly provided, though, to acknowledge there are uses that digital news intermediaries make of copyrighted material that would be limitations or exceptions under the Copyright Act. That's perfectly appropriate. However, the bargaining is intended to sit alongside that. You don't get to come in to the negotiations and say, “Well, these uses are covered by fair dealing” or “These uses are covered by exceptions; therefore, we want to see a corresponding decrease in the value.” They were intended to sit alongside each other, with the bargaining obligation there.

I share the concern that focusing on one particular limitation or exception potentially creates adverse interpretations with respect to other limitations or exceptions in the Copyright Act.

[The Chair, Liberal, Hedy Fry]

Thank you.

Go ahead, Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

I have a question for the officials.

The concerns raised were raised by intelligent people. With all due respect, I don't believe Professor Michael Geist is purposely trying to mislead this committee in any way. He's been given the credentials he has and his position within his university setting for a reason. He's referred to as one of the most senior voices on this issue in the nation.

When it comes to copyright, then, there are provisions made for us, right now, as Canadians. We are allowed to take a certain percentage of material—generally 10%—and replicate that and make it public without any negative repercussions. This bill, in its current state, would not allow for the quotation of material taken from a news source without that news source being able to use that as an opportunity for bargaining or negotiation. In other words, there is no protection for those wanting to share small quotations of news.

Is that not correct?

[Thomas Owen Ripley]

Thank you, Mrs. Thomas.

Nothing in this bill is intended to reduce the scope of limitations or exceptions under the Copyright Act vis-à-vis the digital news intermediary or any use that you or I, as individuals, can make of copyrighted material.

[Rachael Thomas, Conservative, Lethbridge, AB]

It might not be intended, but it does.

[Thomas Owen Ripley]

What the bill does do is nonetheless impose an obligation on dominant social media and other digital news intermediaries to bargain. That obligation sits alongside whatever use is permitted under the Copyright Act. The consequences of not bargaining under this bill are distinct and separate from questions of infringement of copyright. This bill does not speak to whether it's an infringement of the Copyright Act or of copyright. What it says is that if a digital news intermediary does not bargain, consequences might potentially stem from that.

[Rachael Thomas, Conservative, Lethbridge, AB]

I understand what you're saying in terms of intended versus unintended consequences. I understand what the legislation is, if you look at it as a purist and turn a blind eye to the unintended consequences. I understand what it does.

Essentially, however, if you're taking small portions of news, which are then used as part of the reason for negotiating, wouldn't that have the unintended consequence of going against or challenging the Copyright Act?

[Thomas Owen Ripley]

The act is in no way intended to limit the activity of individuals sharing quotations or any permitted use under the Copyright Act. Section 24, though, is explicitly designed to pre-empt an argument that just because something is permitted under the Copyright Act, it necessarily reduces the value of news content under this act.

The government is not disputing that digital news intermediaries and their activities may be covered by certain limitations or exceptions under the Copyright Act so that it's not an infringing use of that material. That's not in dispute. However, this framework, as constructed, was intentional in not situating that discussion over value in the Copyright Act framework. That was an intentional decision.

The committee has heard about some of the European laws that are situated in a copyright act framework, but the Australian regime was a bargaining framework. That is the model the government chose to pursue.

[The Chair, Liberal, Hedy Fry]

Thank you, Mr. Ripley.

Go ahead, Marilyn.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Thank you, Madam Chair.

Professor Geist, who I agree is well recognized for his work on copyright law, expressed concerns about this very area and said, of clause 24:

I must say I find it astonishing that we would effectively say that certain parties don't have rights of quotation, so you have to set it aside for the purposes of negotiation. This is a must-have within international copyright law, yet it's been excluded. I should note that this is something you do not find in the Australian legislation. That's a made-in-Canada violation of international law.

For example, clause 24, which excludes copyright limitations and exceptions from the bargaining process, may violate article 10(1) of the Berne Convention, which has a mandatory right of quotation that expressly includes newspaper articles.

I think putting this in the bill will clarify any attempt by anyone to do something that was unintended.

[The Chair, Liberal, Hedy Fry]

Thank you.

Go ahead, Anthony.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you so much, Madam Chair. I always appreciate Marilyn's comments. I think there are two different things here, though, and I want to frame this in terms of a last question to Mr. Ripley from me.

I think there's one view, which I think is the view that I hold, that there is no violation here of the Copyright Act, that nothing within the Copyright Act is limited and there is nobody who will be sued for infringement of the Copyright Act as a result of things they do because of this bill. We are allowed to say that you must negotiate and we will not take into account certain exceptions under the Copyright Act irrespective of the amount when you're considering the amount that you're ultimately getting for the value of news content.

However, there's another argument that will say that's in violation of the Copyright Act and that those people who have that colourable claim—and again, law is grey, right, and there's no total black and total white—may sue and say that this is a violation of the Copyright Act, and the courts will then determine that.

This amendment, though, I don't think serves the purpose that the proposer is looking for. The proposer, I believe, is rightly saying we want to make sure that the right to quotation, which is a right under the Berne Convention and a right under the Copyright Act, is preserved, but I don't think that putting it there actually achieves that purpose. What I think it does is create an ambiguity that the bill is actually intended to limit rights under the Copyright Act, and therefore this one right continues to be guaranteed, but other rights, which are equally valid under the Copyright Act as exceptions, may no longer be valid because this one is singled out.

I think it actually achieves the opposite purpose. Yes, it may enhance the copyright right somehow, because it will be clearer, but then it becomes unclear if other exceptions are meant to be preserved as well, and it changes what I think the intent of section 24 was meant to say.

I don't know if that will convince anybody, because, again, I don't believe there's a white and a black here—I think it's grey—but I don't think this amendment furthers the purpose of those who are worried that there's an infringement of the Copyright Act. I think it actually means that other exceptions under the Copyright Act will be more likely to not be sustained because people will then assume that section 24 is meant to actually say that the Copyright Act no longer covers certain things, and I don't think that was the intention of the framers of the bill.

I guess I'd throw that to Mr. Ripley to see if he agrees with that rather long and perhaps unclear—but I think it was relatively clear—dissertation.

[Thomas Owen Ripley]

Thank you, MP Housefather.

My answer is the same: That the government's intention is not to impact the scope of the Copyright Act. Then yes, potentially teasing out one specific exception to copyright from an interpretation perspective may mean that Parliament has explicitly turned its mind to that question and there could then be inferences made about the other limitations or exceptions that aren't listed.

[The Chair, Liberal, Hedy Fry]

Thank you.

Go ahead, Mrs. Thomas.