Evidence of meeting #184 for Finance in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was proposed.
A recording is available from Parliament.
Liberal
The Chair Liberal Wayne Easter
Thank you all, on that section.
We'll turn to amendments related to the preservation of usage rights.
Director General, Marketplace Framework Policy Branch, Innovation, Science and Economic Development Canada
This is part 4, division 7, subdivision E, clauses 265 to 272.
The Bankruptcy and Insolvency Act and the Companies' Creditors Arrangements Act were amended in 2009 to allow insolvent entities that are restructuring under those acts to disclaim agreements in contracts, including intellectual property usage agreements, where doing so would facilitate a successful restructuring. The amendments also sought to protect intellectual property users who relied on the continued use of that intellectual property, subject to the usage agreements. If an intellectual property agreement were disclaimed in a restructuring, the user's right to ongoing use of the intellectual property would not be affected, as long as the user continued to abide by the terms of the initial agreement.
The 2009 amendments only protected intellectual property users affected by the disclaimer of intellectual property agreements in a BIA or CCAA restructuring.
Subdivision E of division 7 of part 4 of the budget implementation act, no. 2, amends the BIA and CCAA to extend those protections afforded to the users of intellectual property in 2009 further, to include asset sales by restructuring companies under the BIA and CCAA as well as liquidations and receiverships under the BIA.
Essentially, if you had a licence to utilize intellectual property with an entity and that entity goes insolvent, we want to ensure that we're preserving those contractually agreed-upon terms so that you're not faced with a potential new owner who's disclaimed your licence, forcing you to renegotiate terms with someone who knows you need the licence so desperately that there can be no level playing field in that negotiation.
Liberal
The Chair Liberal Wayne Easter
Sounds logical.
Any questions?
Okay, We'll move to privileged Information.
Director General, Marketplace Framework Policy Branch, Innovation, Science and Economic Development Canada
This is just a small change related to what we were talking about earlier. Patent and trademark agents have privilege, similar to solicitor-client privilege, as we indicated. However, there are patent and trademark agents in the Government of Canada who provide assistance in the patenting and trademarking of government technology.
This just amends the Access to Information Act to ensure that they too will benefit from the privilege and that government inventions will not be unduly disclosed when the information is transferred to a patent and trademark agent.
Director General, Marketplace Framework Policy Branch, Innovation, Science and Economic Development Canada
Sorry. This deals with clauses 273 to 277.
Liberal
The Chair Liberal Wayne Easter
Is everyone okay?
Then we'll turn to the National Research Council Act, subdivision G.
Dale MacMillan Vice-President, Corporate Services and Chief Financial Officer, National Research Council of Canada
I'll speak to clause 278. The National Research Council Act now permits the National Research Council to hold and acquire real property. However, it does not give us the authority to dispose of it.
From time to time when we have infrastructure facilities that are surplus to our needs, after completing all the government processes to make sure that we do our consultation and dispose of property in a proper way, we do not have the authority to actually complete the disposition. Therefore, we are requesting the authority to complete that disposition.
Liberal
Greg Fergus Liberal Hull—Aylmer, QC
Thank you, Ms. MacMillan.
Was this born of a situation that happened in Manitoba with the NRC's properties?
Vice-President, Corporate Services and Chief Financial Officer, National Research Council of Canada
No, actually, this is just to fulfill...because we can acquire property, we can manage it, but we are over a hundred years old and from time to time we do find that we have facilities, land, properties that become surplus to our requirements, particularly as we partner with other organizations and as our needs change through operations.
Now when we identify something that's surplus to our needs, we consult with other federal partners, provincial, municipal and indigenous groups, etc., and perhaps even go to open market, and once all of that process is completed and we have a potential way forward on a disposition, we currently have to go back to Treasury Board to gain the authority to complete that disposition.
What we're seeking is to be able to complete that process. If we do sell something on the open market, any funds received go into the consolidated revenue fund, and we still have to go back to Treasury Board through the estimates process to access those funds, which would also be reinvested in any kind of real property holdings.
This is just a general request in order to complete the whole process for property management.
Liberal
Greg Fergus Liberal Hull—Aylmer, QC
Is this similar to any of the other granting councils or any of the other scientific bodies that we have?
Vice-President, Corporate Services and Chief Financial Officer, National Research Council of Canada
Very few government departments are actually real property holders. I don't believe that the granting councils hold any property whatsoever. This is something that is unique to our act.
Vice-President, Corporate Services and Chief Financial Officer, National Research Council of Canada
Thank you.
Liberal
Christopher Johnstone Director General, National Programs and Business Services, National Research Council of Canada
There's one more clause.
Clause 279 has two parts. The first amends the National Research Council Act to broaden the NRC's rights to dispose of its intellectual property to include all forms of intellectual property and future intellectual property rights that may arise under contracts. Previously, the NRC's authority to dispose of intellectual property did not clearly cover certain forms of intellectual property, such as copyright.
The second part of the clause modernizes the act, by moving the administration and control of inventions made by NRC employees from the minister responsible for the NRC to the NRC itself. This brings the act in line with legislation of similar government organizations.
Liberal
Liberal
Greg Fergus Liberal Hull—Aylmer, QC
I'm trying to get my head around the first part of this, as opposed to the Public Servants Inventions Act.
Can you just walk me through the need for us to do this, on the intellectual property rights issue of inventions owned by the NRC?
Director General, National Programs and Business Services, National Research Council of Canada
It's to expand the intellectual property rights to forms of intellectual property other than patents.
Director General, National Programs and Business Services, National Research Council of Canada
Other forms of intellectual property include things such as copyrights, which is more common with respect to software. This clarifies the NRC's authority, with respect to disposing of intellectual property to those other forms of copyright, aside from patents. Right now, the act does not clearly extend the NRC's rights to those other forms of intellectual property, such as copyright.
Liberal
The Chair Liberal Wayne Easter
Thank you all.
I think you have another group of witnesses to come up for subdivision H.
Thank you for waiting around this long.
In this next group, we have Mr. Schaan again and we have Mr. Simard.
With Canadian Heritage, we have Ms. Beaton, who is director general, creative marketplace and innovation branch; Mr. Cappuccino, who is the director, copyright policy; and Ms. Vigneault, who is policy analyst, legislation and parliamentary affairs.
The floor is yours again, Mark.
Director General, Marketplace Framework Policy Branch, Innovation, Science and Economic Development Canada
Thank you, Mr. Chair.
The Copyright Board is a quasi-judicial independent tribunal which establishes fees for the use of works that are protected by copyright. In almost all cases, the board's jurisdiction only applies to the rights managed by collective management organizations. The board facilitates the development and growth of the market that counts on copyright; it acts as a specialized, independent decision maker and protects public interests.
Subdivision H of division 7 of part 4, clauses 280 to 302, amends the Copyright Act to modernize the legislative framework in which the board operates so as to improve the timeliness, predictability and clarity of board proceedings by codifying the board's mandate, establishing decision-making criteria, modifying timelines, formalizing case management and modernizing the existing language and structure.
It also allows more collective societies to enter into agreements directly with users to ensure that the board is adjudicating matters only when needed.
Very quickly, I'll simply say that the board has been the subject of considerable study in both Houses as well as in research reports written by many, and the legislative amendments that we have set out today set out a number of important modernizations. As I indicated, there are clear rules and processes that provide the board with a clear mandate not only formalizing its de facto substantive mandate, which is to set fair and equitable rates, but also proposing amendments that would include a procedural mandate for the board to act as informally and expeditiously as the circumstances and considerations of fairness allow.
It will create clear criteria that require the board to consider two criteria in its decisions: what would be agreed upon between a willing buyer and a willing seller in a competitive market, and the public interest. It would empower case management, which has been demonstrated to be a highly effective tool to advance contested proceedings in a flexible and efficient manner.
It also sets out streamlined timelines, including earlier filing for longer duration. This is all aimed at ending the practice of retroactive tariffs. In the majority cases when the board sets tariffs, they are retroactive in nature, sometimes as many as four to six years retroactive, which obviously freezes capital, forces parties to hold on to significant sums, creates uncertainty and unpredictability in the marketplace and potentially deprives Canadian creators and the Canadian marketplace of new services.
The act sets the need for earlier filing for a longer duration, a modernized publication regime, a shorter opposition period and decision-making deadlines through a new regulatory power that would enable the Governor in Council to establish timelines or deadlines for how the board pursues its work.
It lets willing buyers and willing sellers come to agreements through direct negotiation between users and collectives for communication and public performance rights, but it also allows for individual dispute settlement to ensure there's no undue pressure for someone to enter into an agreement and that there's due process around that.
Finally, on enforcement and remedies, it maintains the current balance with regard to remedies. Existing statutory damages would continue to be available to collectives and their members in respect of communication and public performance.
With regard to filing and review of agreements, the existing mechanisms that allow either party to file agreements with the board to have them available for potential review would be extended.
Finally, on robust protection of the public interest, first of all, as I indicated, the board will be required to consider the public interest and the board plans, as its part of this modernization, to propose regulations that would formalize the ways for the public to be involved without having to incur the cost of full participation.
That is the modernization of the Copyright Board. I'm happy to take any questions.
