Evidence of meeting #136 for Industry, Science and Technology in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was content.
A recording is available from Parliament.
Senior Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
I would say that's an element of it, but I would also say that accessibility is. If you can get it for free, why would you pay for it?
Senior Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
We did have a submission supporting FairPlay, yes.
Laurentides—Labelle, Lib.
I have one final question. This is a general question really, for everybody.
Should copyright be proactively registered by copyright holders, or should everything that is copyrightable be automatically copyrighted?
Senior Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
I think you're asking to change—
Senior Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
—centuries of jurisprudence by changing that, and enforcing any idea that you would have to register copyright. There is an advantage to doing so, but, no, I don't think that you would need to register copyright in order to have it in force.
Laurentides—Labelle, Lib.
Okay.
Now I'll move on to Mr. Fewer for a few minutes.
You talked about rolling back overprotection on digital locks, which is an interesting point. Have we ever defined exactly what the limit of a digital lock is?
Director, Canadian Internet Policy and Public Interest Clinic
I beg your pardon. What a—?
Laurentides—Labelle, Lib.
What is the limit of a digital lock? If I have an iPad in front of me and I have to unlock it to use it, everything on there is, technically, digitally locked. Where is the limit of what is digitally locked and what isn't?
Director, Canadian Internet Policy and Public Interest Clinic
We've had a little bit of judicial interpretation of the provisions, one of which was absolutely horrific, where a court, a lower-level court, thankfully, said that merely getting content that is behind a paywall for a third party—say John is a subscriber and I ask John to shoot me a copy of an article about me—is a circumvention of a digital lock.
We would say that plainly is not a circumvention of a digital lock. How you ought to be incurring liability within any circumvention provisions is by defeating them, tackling the technology and defeating the technology to access the content. That was the intent, plainly.
It may be that there is room for clarifying the legislation in that direction. We would also suggest looking at all the exceptions that are permissible under the trade agreement, and saying, what are the interpretations available to us and how can we craft those interpretations in a way that will safeguard Canadian innovation and creators who need to access this content to create?
Laurentides—Labelle, Lib.
A couple of days ago, we had witnesses representing the blind. They indicated that, while the TPM circumvention rules permit them to circumvent for the purpose of accessibility, the fact that the TPMs are there make it a practical impossibility. Do you have any comments on that?
Director, Canadian Internet Policy and Public Interest Clinic
Yes, I will share those.
I'll put my cards on the table. I have constitutional concerns with the anti-circumvention provisions. I've written about this for 25 years. Copyright attaches to expression. It's built into the law. You don't get a copyright on ideas. You get a copyright on expression. Expression is also, obviously, the domain of freedom of expression, subsection 2(b) of the charter. Any kind of limitation on accessing that content, accessing expression, has to be demonstrably justifiable in a free and democratic society.
How on earth current versions of the anti-circumvention laws meet that test is beyond me. I think in the appropriate case, perhaps the sort of case you're talking about, we'll see a court agree with my view of the constitutionality of those provisions, but it's going to take us a while to get there. I think it's open to this committee to take a look at those provisions and see what we can do before we force those organizations to go to court.
Laurentides—Labelle, Lib.
Fair enough.
You mentioned appropriate consequences for misuse of notice and notice. I guess we could call that “notice and notice and notice”. What would those consequences be, in your summation? What would actually work?
Director, Canadian Internet Policy and Public Interest Clinic
We've seen in the United States, with the notice and take down system, which was kind of the first of these sorts of systems in the United States, that consequences, basically penalties, lie for being reckless or knowingly misusing the system. We don't have that in Canada. My organization had asked for such consequences in the legislation when it was initially drafted, but we did not get that. I think we've seen that, in how the system has been misused, it might help.
Laurentides—Labelle, Lib.
I have 10 seconds or something like that.
Mr. Lawford, here's a very quick question for you.
If a device levy—we talked about this a lot—were to be brought in, would that not legitimize piracy? If we're charging someone a piracy charge for their device, doesn't that mean all your anti-piracy activities then have to cease because we've now legitimized the piracy actions?
Executive Director and General Counsel, Public Interest Advocacy Centre
I think if you're a reasonable consumer, you could come to that reasonable conclusion, yes.
Liberal
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Thank you.
I guess I'm going to pick on you, Mr. Fewer, because everyone seems to be doing that today.
You noted in your testimony that, if the marketplace is operating properly, then there shouldn't be a problem with piracy. I was wondering if you could illustrate what that healthy marketplace would be. It seems the content would have to be free for people to not pirate it. What is a healthy marketplace where it's not free, in your mind?
Director, Canadian Internet Policy and Public Interest Clinic
We live in a free and democratic society, so there's always going to be a little bit of background unlawfulness. We still have the Criminal Code despite living in a free and democratic society. It's the same with copyright. There's always going to be copyright infringement unless we change the laws in such a draconian way that—
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
How do we change the marketplace to be more adaptive?
Director, Canadian Internet Policy and Public Interest Clinic
First of all, you have to have the structures in place that incentivize platforms, that incentivize content to engage in those platforms, so that there is confidence that if you go that way, if you offer innovative digital services, you'll be able to make a return. I think it's always useful to take a look at what's actually going on in the content industry. Are they making money, or is this an industry where people are going bankrupt and nobody will invest in them, where nobody invests in them in the stock market because they get below-average returns and they're unable to turn a profit?
I think it's fair to say that's not the case. The content industry is a profitable industry. They do not suffer from low returns. What is their return on investment? It still seems to be attractive. Bell is still a cornerstone company in lots of very conservative holdings. That's a good thing to look at: When the content industry is saying that they can't make money, is that true?
Conservative
Dane Lloyd Conservative Sturgeon River—Parkland, AB
Thank you.
You said that you don't believe that fair dealing should be exhaustive; it should be illustrative. I was wondering if you could unpack that idea a little further.
November 5th, 2018 / 4:30 p.m.
Director, Canadian Internet Policy and Public Interest Clinic
The way fair dealing is structured, before you even get into any analysis of whether a dealing is fair, it has to be for one of the enumerated purposes in the act. I would have said this was a real problem 20 years ago when courts narrowly construed exceptions as basically derogations from a grant.
That approach has been turned on its head. We now understand that the exceptions fulfill a purpose. They're there to fulfill a policy purpose of Parliament. They're remedial in nature, and they should be given the generous interpretation that remedial legislation deserves. That's the approach the court has taken. That has done a good deal to cover lots of useful, innovative and creative dealings that in past would not have occurred because of the fear of infringement.
