Industry Committee on Nov. 5th, 2018

[The Chair, Liberal, Dan Ruimy]

Welcome, everybody, to meeting 136, as we continue our statutory review of the Copyright Act. Is there a hockey player with the number 136? No, there are no hockey players with the number 136—too bad.

Today we have with us, from the Business Coalition for Balanced Copyright, Gerald Kerr-Wilson, partner, Fasken Martineau DuMoulin LLP. We have, from the Canadian Chamber of Commerce, Scott Smith, senior director, intellectual property and innovation policy.

It's good to see you again, sir.

We have, from the Canadian Internet Policy and Public Interest Clinic, David Fewer, director. Finally, from the Public Interest Advocacy Centre, we have John Lawford, executive director and general counsel.

We will start. You'll each have up to seven minutes. We'll do a round of questions, and I believe we'll be leaving some time at the end for debating a motion that will be on the floor. That should leave us about half an hour to debate the motion, and we'll go from there.

Why don't we start with you, Mr. Wilson? You have up to seven minutes.

[Gerald Kerr-Wilson, Partner, Fasken Martineau DuMoulin LLP, Business Coalition for Balanced Copyright]

Thank you very much, Mr. Chairman.

Good afternoon, members of the committee.

My name is Jay Kerr-Wilson. I'm a partner with Fasken Martineau and am appearing today on behalf of the Business Coalition for Balanced Copyright, or BCBC.

The members of BCBC include Bell Canada, Rogers, Shaw, Telus, Cogeco, Vidéotron and the Canadian Communication Systems Alliance. BCBC's members support a copyright regime that rewards and protects creators, facilitates access to creative content, encourages investment in technology and supports education and research.

The exceptions that were added to the Copyright Act in 2012 were necessary to eliminate uncertainty that would restrict or inhibit the development of innovative new products and services. Reducing or eliminating these exceptions will put at risk hundreds of millions of dollars in investments. It will cause disruptions in the rollout of legitimate new services that would otherwise provide copyright owners more opportunity to earn revenue by giving Canadians more access to more content.

The coalition does not believe that new copyright levies should be imposed on ISPs or other intermediaries in an attempt to create new sources of revenue for Canadian creators and artists.

First, requiring ISPs to make content-specific payments is a clear violation of the principle of network neutrality.

Second, and more important, the Copyright Act is not the appropriate statute for promoting Canadian cultural industries. Canada's obligations under international treaties require that any benefit that is granted to Canadian copyright owners must also be provided to non-Canadians when their works are used in Canada. As a result, most of the money collected from Canadians would go to the U.S.

Third, copyright owners are already paid for lawful online activities through commercial licence agreements, and in the case of SOCAN, tariffs approved by the Copyright Board. Forcing Canadians to pay another fee for receiving these same lawful services is a form of double-dipping, a practice that was rejected by the Supreme Court in ESA v. SOCAN.

The government has other, far more appropriate policy tools at its disposal to promote Canadian cultural content and Canadian creators. Using these tools enables measures to be specifically targeted to Canadian creators in a way that the Copyright Act cannot.

The BCBC supports the addition of a new exception for information analytics. A human being can access and read a document without having to make a new copy or reproduction. Automated processes need to make technical copies in order to read and analyze the content of documents. Just as Parliament recognized the need in 2012 to create exceptions to apply to the reproductions that are required to operate the Internet, the BCBC believes that a new exception is required to eliminate any uncertainty regarding the making of reproductions for automated information analysis.

The BCBC recommends an additional improvement to the existing “notice and notice” regime. In Bill C-86, the budget implementation act, the government introduced amendments to prohibit the inclusion of settlement demands and infringement notices. The BCBC strongly supports this proposal but believes additional amendments are necessary to protect consumers and to give ISPs the tools they need to stop these settlement notices.

Bill C-86 makes clear that ISPs are not required to forward settlement demands to subscribers; however, it contains no useful deterrent to dissuade rights holders or other claimants from including settlement demands in copyright notices. We believe the onus for excluding settlement demands from copyright notices must rest solely with the rights owner, not the ISPs, who currently face liability for failing to forward compliant notices.

The other needed change is to adopt regulations establishing a common standard for infringement notices. Canadian ISPs and the motion picture industry co-operated on the development of a standard format known as the Automated Copyright Notice System, or ACNS, which is freely available at no charge and reflects Canadian requirements. The government should enact regulations establishing the form and content of notices based on ACNS.

The BCBC is aware that the ministers have written to this committee and the heritage committee with respect to the changes to the Copyright Board and collective management of copyright. The BCBC supports many of the changes that have been introduced to improve the efficiency of Copyright Board proceedings.

The coalition is concerned that some of the changes will eliminate important protections for licensees and could result in monopoly copyright licensing practices that are no longer transparent or subject to regulatory oversight.

The coalition strongly supports amendments that will make it easier for copyright owners to effectively enforce their rights. The act should allow for injunctive relief against all of the intermediaries that form part of the online infrastructure distributing infringing content. For example, it should be explicit that courts can issue a blocking order requiring an ISP to disable access to infringing content available on preloaded set-top boxes or an order prohibiting credit card companies from processing payments for infringing services.

The BCBC recommends that the Copyright Act be amended to eliminate a potential conflict between a court order for ISPs to block access to infringing services and the CRTC, using its authority under section 36 of the Telecommunications Act, to prohibit that blocking.

The BCBC finds it unacceptable that an Internet service provider could be ordered by a court to block access to an infringing Internet service and prohibited by the CRTC from complying with that court order. This conflict must be resolved in favour of the court order.

Finally, the BCBC warns the committee against unfounded claims of a value gap between the music industry and Internet services. The claims made by the music industry and the amendment they're demanding ignore how rights are cleared through commercial transactions. If adopted, these measures would disrupt well-established commercial relationships and would ultimately result in substantial net outflow of money from Canadians to U.S. record companies. For example, the music industry wants the definition of “sound recording” revised so that record companies and performers get paid public performance royalties when sound recordings are used in soundtracks in film and television programs.

The music industry appears to suggest performers and record labels aren't paid for the use of recorded performances in soundtracks. This is simply false.

Record companies are free to negotiate the terms of using recorded music and soundtracks with the movie producer. Performers have to agree to the use of their performances in soundtracks and are entitled to demand payment through their agreements with the record labels. Furthermore, the Copyright Act already provides detailed provisions protecting the rights of performers to be paid for the use of their performances. Revising the definition of “sound recording” as suggested would result in record labels and performers getting paid twice for the same use.

If the committee is concerned about improving the financial fortune of performers, it could recommend that the division of royalties between record companies and performers in subsection 19(3) be adjusted. The simple change would immediately put more money in the pocket of every performer who's performance is played on the radio, streamed online, or played in bars and restaurants.

Thank you. Those are my comments. I look forward to your questions.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move right to the Chamber of Commerce. Scott Smith, you have up to seven minutes.

[Scott Smith, Senior Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce]

Thank you very much, Mr. Chair, and members of the committee, for the opportunity to address you today.

I'm actually here for the Canadian intellectual property council, which is a special council within the Canadian Chamber of Commerce—the national voice of business, representing over 200,000 businesses across Canada.

The CIPC is dedicated to improving the intellectual property rights regime in Canada and has broad-based participation from a variety of industries, including manufacturers, the entertainment industry, information and communications technologies companies, telecommunications and logistics firms, legal professions, retailers, importers and exporters, pharmaceutical and life science companies, and business associations.

The leaders of the CIPC are senior executives from corporations and associations who have a strong understanding of their industries' challenges and recognize the need for the protection of IPR in Canada. The mandate of the council is to promote an improved environment in Canada for businesses interested in innovation and intellectual property, by raising the profile of IPR among key policy-makers in the government and the general public.

I'd like to start by thanking the government for efforts to recognize the link between innovation and intellectual property rights in its intellectual property strategy.

Our counterparts at the Global Innovation Policy Center, GIPC, undertake a systematic evaluation of the strength of the IPR regimes in 45 economies. This year, Canada ranked 18, but the score has improved from previous years. Measures such as digital rights management and the enablement provisions introduced in the last update of the Copyright Act are important tools to help protect the significant investments made by creators in Canada. We would like to see those measures preserved going forward.

I'd also note that we are pleased to see that many of the suggestions put forward by the CIPC regarding changes to the Copyright Board have been reflected in Bill C-86, announced last week.

We believe it's important to have a consistent, timely and predictable board, and one that supports and encourages new and existing businesses operating in Canada's cultural industries, through a more efficient and productive tariff-setting process; through provisions to enact reforms by way of regulation, particularly as it pertains to delays; through the provision to support independently negotiated tariffs; and through the adoption of clear decision-making criteria.

We look forward to seeing these provisions come into force in the spring of 2019.

I'd like to focus the balance of my comments today on two issues: addressing online piracy, and keeping the door open to research and innovation for artificial intelligence.

I'll start with a pervasive problem: the significant threat of online piracy that now includes new forms that were not dominant the last time the Copyright Act was reviewed. This includes the commercial operation of illegal online streaming platforms and set-top boxes preloaded with illegal add-ons that provide users with unauthorized access to entertainment content.

According to the MUSO piracy insight report, Canada is now one of the highest consumers of global web streaming piracy. In fact, this same report finds that Canada has moved up to eighth in the global country rank by piracy visits, totalling 1.88 billion visits to all piracy sites in 2016. That web streaming is now the most popular type of piracy in Canada.

In the Government of Canada's own study on online consumption of copyrighted content that was issued in May 2018, one quarter of all Canadians self-reported as having consumed illegal content online. Sandvine also estimates that 10% of Canadian households use illegal subscription services.

The economic harm caused by online piracy is all too real. According to research by Frontier Economics, the commercial value of digital piracy of film in 2015 alone was estimated at $160 billion worldwide. In Canada, where the film and television industry alone accounted for over 170,000 jobs in 2016 and 2017, and generated $12 billion in GDP for the Canadian economy, the impact of online piracy is significant.

Unfortunately, the current tools available in the Copyright Act are insufficient to deal with these new threats. While there is no single solution to piracy, the Copyright Act should be modernized and leverage tools proven to be effective in helping to reduce online piracy, including those available in Europe.

CIPC encourages the government to enact provisions that expressly allow rights holders to obtain injunctive relief from competent authorities, such as site blocking and de-indexing orders against intermediaries whose services are used to infringe copyright.

Illegal content is accessed through Internet intermediaries, and they are best placed to reduce the harm caused by online piracy. This principle has long been recognized throughout Europe where article 8(3) of the EU copyright directive has provided the foundation for copyright owners to obtain injunctive relief against intermediaries whose services are used by third parties to infringe copyright.

The need for modern and effective tools to help address online piracy has been supported by the broadest range of Canadian stakeholders, including Canada's largest Internet service providers, all of whom have recognized the harm caused by international piracy sites that harm Canada's creative economy.

Even the CRTC has acknowledged the harms caused by piracy in considering the application filed by the FairPlay Canada coalition earlier this year, but ultimately pointed to the current review of the Copyright Act as the appropriate forum to address this pressing issue. Building on precedents that already exist in Canada, the Copyright Act should be amended to expressly allow rights holders to obtain injunctive relief against intermediaries by site blocking and de-indexing orders of infringing sites.

I'll conclude with preserving an opportunity, and I'm going back to data here. Data, and the techniques and technologies employed to collect and analyze it, will allow Canada and the world to solve some of the world's most pressing economic, social and environmental problems. Data is now the engine of economic growth and prosperity. Countries that promote data's availability and use for society's good and economic development will lead the fourth industrial revolution and give their citizens a better quality of life.

Machine-learning frequently necessitates the use of incidental copying of copyrighted works that have been lawfully acquired. Works are used, analyzed for patterns, facts and insights, and those copies are used for data verification. To avoid the risk of blocking this activity, we suggest that any legislation that deals with the applicability of copyright infringement liability rules should examine carefully how these rules apply to all stakeholders in the digital network environment as part of ensuring the overall effectiveness of a copyright protection framework.

Thank you for the opportunity to present to you today.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Before we move on, you mentioned in your opening statement the MUSO piracy insight report. Would you be able to submit that to the clerk?

[Scott Smith]

Yes, I certainly can.

[The Chair, Liberal, Dan Ruimy]

That would be great. Thank you very much.

We're going to move on to the Canadian Internet Policy and Public Interest Clinic and David Fewer.

[David Fewer, Director, Canadian Internet Policy and Public Interest Clinic]

Thank you, Mr. Chair.

Good afternoon, members of the committee. My name is David Fewer. I'm the director of CIPPIC, which is the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the centre for law, technology and society at the University of Ottawa.

We are Canada's first and only public interest technology law clinic. We're based in the university. We essentially bring lawyers with expertise in technology law issues together with students to advocate on behalf of the public interest on technology law issues.

Our work resides at the heart of Canada's innovation policy agenda. We work on everything from privacy to data governance and artificial intelligence, network neutrality, state surveillance, smart cities policies and, of course, copyright policy. Our work essentially is to ensure respect for Canadians' rights on technology policy, as governments and courts respond to Canadians' use of ever-changing, new technologies.

I want to start with two background comments with respect to approaching copyright policy. Number one is the concept of balance. It's been long settled now in Canadian copyright policy that balance is essential to the overall scheme and objective of the act. That means Canadian copyright policy must be directed towards achieving a balance between providing a just reward for creators and owners of copyright works and the public interest in the dissemination of works more broadly. This guiding principle is basically the touchstone of copyright policy and should be central to any review of the Copyright Act.

That brings me to my second background point, which is the USMCA. The recent conclusion of the renegotiated NAFTA agreement upsets the balance in Canadian copyright law policy. This is not the place to go through an extensive review of the changes to copyright law that will be required by the legislation, but three that jump out to me were a copyright term extension, the enhanced digital lock provisions which were further unsettling a troubling area of Canadian copyright policy, and the new customs enforcement rights, revamping an area of law that we had just within the last two years upgraded.

These are just some of the benefits to copyright owners that are promised in this trade agreement. We would ask the committee to engage in these hearings with a view to resolving or restoring the balance that's at the heart of Canadian copyright policy.

Substantively, I want to talk about three specific points. One is digital locks. To the extent that this can be done by Canadian copyright policy, we should be looking to roll back the overprotection of the digital lock provisions. There's an incredible imbalance between the rights that copyright owners enjoy with respect to digital locks versus the rights they enjoy with respect to the content itself. The content itself respects a healthy balance. It has a nod towards future creativity and innovation policies. The digital lock provisions do not.

Many provisions of the Canadian Copyright Act intended to benefit future creators and innovators are locked out where a digital lock is used, and it's difficult to justify that on any kind of reasoned analysis of Canadian copyright policy.

We would ask that the USMCA provisions be studied with a view to determining how best to maintain fair and flexible dealings with content in the face of digital locks. Essentially we say that draconian digital lock provisions deter and undermine Canadian innovation policy, and they undermine digital security. This is not just a user issue. It's an innovation issue. Creators such as documentary filmmakers and new forms of artists—appropriation artists, for example—encounter difficulties in the face of digital locks. That content is beyond their reach.

We would also ask that we look to the extent to which we can restrict criminal circumvention to commercial activity because of the tremendous disincentive of criminal prosecution for innovation and artistic work in the face of digital locks.

Second, I want to turn to fair dealing. CIPPIC has long asked that Canada look to make the list of fair-dealing purposes illustrative, rather than exhaustive. If the dealing is fair, it ought to be legal. That's the bottom line. Failing that, CIPPIC would support extending fair dealing to transformative dealings, to recognize different kinds of authors, such as appropriation artists and documentary filmmakers. Transformative dealings aren't covered well, within the existing fair dealing paradigm.

We would also echo the repeated calls that this committee has heard to extend fair dealing to what I'll call AI activities. We would look for a specific exception for informational analysis.

Finally, related to fair dealing, CIPPIC would call for no contractual overrides of fair dealing. We've talked about privacy already. Our privacy rights have a very difficult time with terms of use, which have privacy policies that no consumer or user ever sees, thereby stripping our privacy rights away. Copyright, which is an innovation policy, should not suffer from the same burden.

Other jurisdictions have done this, particularly within the context of the data mining exception, in jurisdictions such as Britain. Canada should be looking to this too.

Finally, I have a brief comment on the notice and notice system. CIPPIC supports the changes to the system that were recently tabled in Bill C-86 to curb abuses of that system, but we would actually echo Mr. Kerr-Wilson's comments about the need for adverse consequences for reckless or deliberate misuse of that system.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Finally, from the Public Interest Advocacy Centre, John Lawford. You have up to seven minutes, sir.

[John Lawford, Executive Director and General Counsel, Public Interest Advocacy Centre]

Thank you, Mr. Chair. Thank you very much for having me, committee members.

The Public Interest Advocacy Centre is a national non-profit organization and registered charity that provides legal and research services on behalf of consumer interests, in particular vulnerable consumer interests, concerning the provision of important public services.

PIAC has been active on copyright, from a consumer perspective, since the mid-2000s. In particular, we were heavily involved in the creation of the balance between creator and public rights achieved in the major overhaul that led to the Copyright Modernization Act.

Our message today is simple. The present Copyright Act has generally helped Canadian consumers to enjoy copyrighted works, as they should, without excessive strictures that do not align with the realities of how consumers watch, listen to or interact with copyrighted works.

Shaw Communications, when they appeared before this committee, said:

Overall, our Copyright Act already strikes an effective balance, subject to a few provisions that would benefit from targeted amendments. Extensive changes are neither necessary nor in the public interest. They would upset Canada's carefully balanced regime, and jeopardize policy objectives of other acts of Parliament that coexist with copyright as part of a broader framework that includes the Broadcasting Act and the Telecommunications Act.

We agree.

However, the FairPlay coalition application recently brought in CRTC, and now brought to this committee by several vertically integrated media and telecommunications companies, substantially misrepresents the context in which this committee's report must be made.

In reality, first, expedient judicial relief is available against intermediaries. Secondly, administrative censorship is not common around the world. Third, little online copyright infringement may actually be occurring. Fourth, online copyright infringement appears to be declining. Fifth, Canada's broadcasting industry is profitable and growing. Sixth, blocking is not very effective at reducing privacy. Seventh, blocking piracy services generates little additional revenue for broadcasters; pirated programming is predominantly not Canadian. Next, increased revenues for broadcasters may not necessarily increase the quantity or quality of content produced and finally the proposed regime will result in the blocking of legal sites.

PIAC believes that the committee should not recommend the implementation of FairPlay-type proposals. The courts are better positioned to enforce copyright, and balance enforcement against the public interest in freedom of expression, innovation and competition, and net neutrality. Secondly, technical protection measures already exist and are available to protect the interest of content owners. Lastly, the blessing of any Internet censorship in this domain will likely spread to other areas of government activity. These considerations, we feel, weigh strongly against implementing the proposed regime.

As noted above, judicial relief is already available against intermediaries under the Copyright Act, and it's actually subsections 27(2.3) and (2.4). They address the enablement of copyright infringement “by means of the Internet or another digital network”.

In other words, the FairPlay coalition members wish to replace the present judicial enforcement regime with an additional administrative regime. What matters about an administrative process, besides its duplicative nature, is that the process would be handled likely by the CRTC, which the FairPlay coalition members apparently hope through its general jurisdiction over telecom would be able to use a blanket blocking order on many alleged infringing sites on all telecommunications service providers, not just providing the right of one ISP to block one website. That is why they are so keen on enshrining this belt-and-suspenders type of remedy.

To move to fair dealing, PIAC believes that fair dealing exemptions in the Copyright Act generally have facilitated fair use by the public that benefit the public interest. We would resist calls to reduce this, whether in the educational field or elsewhere. Ideally, Canadian fair dealing should also encompass transformative uses, such as remixes of songs and other creative endeavours, including documentary filmmaking. However, we recognize that this was not in the previous act revision.

The iPod or smartphone levy has also been proposed by some in this committee, and has been rightly rejected as inappropriate on many occasions, including in the Federal Court. This recycled idea is no better today. It denies the use of such devices' full capabilities, raises prices on a staple of consumerism and makes the person who uses only licensed content pay twice: once for a licensed copy of the content, and again for others who are presumed to violate the act. This unfairness should be obvious and conclusive.

Lastly, PIAC also opposes the idea of an ISP levy or Internet tax. Such an idea does violence to the very concept of common carriage by telecommunications providers and very likely would raise prices for Internet service. This is a bad idea when Canadians, and in particular low-income Canadians, are struggling to afford broadband Internet for economic and social purposes.

PIAC thanks the committee very much. I look forward to your questions.

[The Chair, Liberal, Dan Ruimy]

Thank you all very much for your presentations.

We're going to move to Mr. Longfield.

[Lloyd Longfield, Liberal, Guelph, ON]

Thanks, Mr. Chair, and thanks, everybody, for coming today.

I'm trying to put myself in the position of a small business person. I'm going to start with the Chamber of Commerce. I'm thinking about the mining of artificial intelligence to try to develop a business.

Thanks, by the way, for involving me in the recent meetings with the Canadian Chamber of Commerce, where I was able to talk to a lot of your members who were involved in digital technology and digital businesses. I left that meeting thinking that these people could give other businesses a lot of intelligence.

In respect of getting access to the information through AI and protections or payments for AI services, does the Chamber of Commerce have a position on how the legislation should compensate for the use of AI when you're drilling into copyrighted material?

[Scott Smith]

I think our position is fairly straightforward. Any material that is copyrighted needs to be legally acquired first, so you have to pay the appropriate fees, royalties or what have you. Once it moves beyond that, and there is a requirement to have copies for verification and machine learning, there would be an exception within the Copyright Act.

[Lloyd Longfield, Liberal, Guelph, ON]

Right, so we're looking at a new series of exceptions around data for AI.

[Scott Smith]

I would keep that fairly narrow. This is one new exception.

[Lloyd Longfield, Liberal, Guelph, ON]

Things are already changing. By the time this act comes back around for review, I'm sure we will be looking back at this and realizing that we're just getting started in the AI adventure, especially when you look at quantum computing and how the Copyright Act might interact with manufacturers or other creators.

[Scott Smith]

I think it's incumbent on this committee to be somewhat prescient, to figure out what the world is going to look like and keep this technology as neutral as possible.

[Lloyd Longfield, Liberal, Guelph, ON]

Right. That is what we're trying to do.

Let me stick with you on this. A few years ago, you introduced us to the American chamber of commerce, which came up and made some presentations to some of us. Are you seeing a difference between how Canadians and Americans are approaching this? They have an intellectual property group there. Are they studying some of the same things around digital copyright? Is there anything we can learn from the American chamber of commerce?

[Scott Smith]

I think the U.S. focuses more on some of the issues around piracy and infringement, and they are more aggressive in how they approach the infringements. There's more in the way of criminal proceedings that go along with that. They have a “notice and take down” regime. There are questions as to whether that's a sufficient approach. I think the “notice and notice” regime in Canada is effective as a public awareness tool and an education tool. Some refer to it now as “notice and keep down” regime, looking at the market accounts of infringing content and going after the market accounts as opposed to the websites, which are very difficult to stay on top of. It's very easy to create a new website.

I think looking at the financial “follow the money” is probably a more appropriate approach.

[Lloyd Longfield, Liberal, Guelph, ON]

Good. Thank you.

Mr. Fewer, regarding “notice and notice”, “notice and take down”, two words that came through all of the witnesses today were “balance” and “piracy”. Hearing that Canada's at the top of the charts in piracy, is that something that the Canadian Internet Policy and Public Interest Clinic has looked at in terms of what makes Canada more susceptible to piracy and what we might do to combat it?

[David Fewer]

We're always skeptical about claims that Canada is unique or is at the top of the charts in accessing illegal content. I always look at the source. I'm sorry, but I haven't seen the report that Mr. Smith brought to your attention.

[Lloyd Longfield, Liberal, Guelph, ON]

Okay.

[David Fewer]

Other times when we have done that, we've found that things aren't always what the report claims.

In looking at piracy in general, our take is that the best way to address piracy issues is with a good marketplace framework: a regulatory environment that allows services to come to consumers and that will make piracy unattractive and difficult. Piracy is work. It's hard to do. It does cost. You have to pay for your Internet, you have to pay for your computing and you have to put the resources into finding unlawful content and acquiring it. We always think that a healthy marketplace is the best deterrent to piracy.

[Lloyd Longfield, Liberal, Guelph, ON]

Right.

In terms of a healthy marketplace, you mentioned regulatory issues. The act is what it is. It's a legislative framework. When it comes to regulatory issues, is Canada responsive in terms of developing regulations for a digital marketplace or is that somewhere we need to look, apart from the act, in looking at our regulatory regime?

[David Fewer]

That's a good question. The law always lags behind technological developments. It's just a feature and it's probably right. We wouldn't want to be sprinting ahead in trying to constrain or direct innovation in a particular way. We want the marketplace to react as it will and we want innovators to innovate. The law I think has to look at what's happening in the marketplace, at how rights holders are reacting and how users are getting access to content, and respond in that way.

Where does Canada stand on this? I think, to be honest, we're not that bad. We have a pretty good regulatory framework in place. There was a great deal of criticism of Canada for being slow to respond to the WIPO treaties and bringing about the changes that ultimately came to pass six years ago now, but the reality is that they did a pretty good job. Had we rushed in, we probably would not have done as good a job. I think Canada should give itself a bit of credit for how it did respond to the emergence of digital issues in the early part of the century.