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.

On the agenda

MPs speaking

Also speaking

Gerald Kerr-Wilson  Partner, Fasken Martineau DuMoulin LLP, Business Coalition for Balanced Copyright
Scott Smith  Senior Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce
David Fewer  Director, Canadian Internet Policy and Public Interest Clinic
John Lawford  Executive Director and General Counsel, Public Interest Advocacy Centre
Dan Albas  Central Okanagan—Similkameen—Nicola, CPC
David de Burgh Graham  Laurentides—Labelle, Lib.
Michael Chong  Wellington—Halton Hills, CPC
Clerk of the Committee  Mr. Michel Marcotte

4:05 p.m.

Liberal

Lloyd Longfield Liberal Guelph, ON

Thank you.

Seven minutes goes by very quickly. I have more questions, but I appreciate your comments.

4:05 p.m.

Liberal

The Chair Liberal Dan Ruimy

You counted it down pretty good.

We're going to move to you, Mr. Albas, for seven minutes, please.

4:05 p.m.

Dan Albas Central Okanagan—Similkameen—Nicola, CPC

Thank you, Mr. Chair.

Also, thank you for all the expertise that is here today and for some very educated briefs.

I'll start with you, Mr. Fewer. Your group has stood against the FairPlay website-blocking proposal, in part by arguing that the CRTC lacked the authority to undertake such a program. Would your group be opposed to a transparent legal procedure such as using the Federal Court, where a rights holder could attain a site-blocking order if they demonstrate that copyright infringement is occurring?

4:05 p.m.

Director, Canadian Internet Policy and Public Interest Clinic

David Fewer

Our position is that the Federal Court is the place for copyright to be enforced—the Federal Court or the provincial courts. We're highly skeptical of the efficacy and the “strategic-ness”, let's call it, of any kind of site-blocking mechanism to really address these kinds of issues.

We already have significant provisions in the Copyright Act to allow copyright owners to go after businesses that are predicated upon copyright infringement, and we would encourage copyright owners to use those mechanisms.

4:05 p.m.

Central Okanagan—Similkameen—Nicola, CPC

Dan Albas

We've had a number of groups here saying that they have no recourse when these situations happen. What would your group advocate that they use, then?

4:05 p.m.

Director, Canadian Internet Policy and Public Interest Clinic

David Fewer

When you say, “no recourse”, I think the challenge is jurisdictional issues. Is that what's being implied? That these places are in other jurisdictions...? It's true that they're in other jurisdictions, but the truth is that those other jurisdictions have copyright laws as well.

Part of the grand vision of copyright policy, which was true 15 years ago—when I first came to the clinic and started to talk about copyright policy—and is true today is to push unlawful content to the dark corners of the Internet, the dark corners of the world.

Fifteen years ago, we would have said that Canada should not be a site or a host for businesses intent on infringing copyright and built upon those kinds of destructive capacities, and that to the extent that those businesses exist, they should be offshore. They should be elsewhere. I think the recourse really is to bring pressure to bear internationally on the countries that are hosting these businesses to go after them and enforce copyright laws in those jurisdictions.

4:10 p.m.

Central Okanagan—Similkameen—Nicola, CPC

Dan Albas

We've heard some suggestions by testimony. I believe the lawyer for Shaw said that some clarification regarding what the Federal Court and its authority is in these kinds of matters would be important. Do you feel that the Federal Court has, right now...? Is it absolutely clear that they can hear these cases and order remedial action?

4:10 p.m.

Director, Canadian Internet Policy and Public Interest Clinic

David Fewer

Is it absolutely clear? I mean, the court has very broad remedial discretion under the Copyright Act. Considering their injunctive powers under equitable remedies, they have very broad powers. I would like to see the failure of these provisions before we go in and say that they're inadequate to the task. I think we need to give them a shot.

I'm highly skeptical, in any event, that filtering solutions are going to address this. It's just too easy to circumvent filtering. Filtering is always both overinclusive and underinclusive, so I'm skeptical.

4:10 p.m.

Central Okanagan—Similkameen—Nicola, CPC

Dan Albas

Thank you very much.

I'm going to go over to Mr. Lawford.

Mr. Lawford, you claim in your brief that the cultural industries are thriving. We've heard testimony and seen data that, while overall spending in some sectors is up, creators and artists are suffering.

Are you aware of this information? What do you think the problem is?

4:10 p.m.

Executive Director and General Counsel, Public Interest Advocacy Centre

John Lawford

Not to split hairs, but I didn't say that creators were doing better. I said that the broadcast industry is doing better. The question that raises is how artists are being compensated and what the deal is among broadcasters, broadcasting distributors and artists. We encourage you to look at whether those sorts of deals need to be regulated or not, if Canadian culture industries are truly being starved.

The industries themselves are doing very well. All of the sectors are growing. The only place where you have some contraction is in BDU services where they have pay television channels that may be having slight audience reductions.

Overall, the industry is growing and the pie is getting larger. Whether it's trickling down to creators is a different question.

4:10 p.m.

Central Okanagan—Similkameen—Nicola, CPC

Dan Albas

Your brief specifically referenced something called “second window” rights. Can you elaborate on that concept, please?

4:10 p.m.

Executive Director and General Counsel, Public Interest Advocacy Centre

John Lawford

I'm not sure where that is in our brief, but second window rights would be when the first blush goes through and you sell your content to whatever platform it is. Then that either leaves space for another windowing, or after that time, you can then pass it on to another platform and it will show up later in time.

If you're referring perhaps to something that we wrote in another submission, I think at one point we were suggesting that Canadian content could be second window free, and that would be a way to get Canadian content to Canadians without having to make them pay for it. That might be a good place to have more Canadian content supported. Finding money for that would be a different question.

4:10 p.m.

Central Okanagan—Similkameen—Nicola, CPC

Dan Albas

Again, I'd like to know a little bit more about the second window, but it may have been another.... When you read these things, they kind of blur together.

You also refer to expanding Canadian content rules to online services. We've heard the concern that if we put CanCon rules on streaming services, they won't add Canadian content. They'll just remove other content until the ratio is reached. This doesn't help, obviously, Canadian creators and ultimately doesn't give consumers choice.

Is this a concern that's shared by your group?

4:10 p.m.

Executive Director and General Counsel, Public Interest Advocacy Centre

John Lawford

I'm not sure we've gotten that deeply into the analysis of it.

We've recently revised our position so that we would consider changing the Canadian ownership directive so that Netflix and Amazon Prime and these sorts of things could have to contribute Canadian content. That would be in place of an ISP levy.

4:15 p.m.

Liberal

The Chair Liberal Dan Ruimy

Mr. Masse, you have seven minutes.

4:15 p.m.

NDP

Brian Masse NDP Windsor West, ON

I'll start with the Copyright Board. Does anybody have any positions on the Copyright Board in terms of the current situation?

If you check—I did this really quickly to update myself—they call it “What's New”. There are two appointments in September on their website. They have a couple of hearings that they mention. One of them is in 2019, and another one is in 2020.

We have heard something about the Copyright Board's speed and support. Does anyone have any comments about the Copyright Board?

It's one of the things that can be done without legislative changes.

4:15 p.m.

Partner, Fasken Martineau DuMoulin LLP, Business Coalition for Balanced Copyright

Gerald Kerr-Wilson

I'll start. I do spend quite a bit of time appearing before the Copyright Board.

Speed and retroactivity of decisions were a large concern for a number of users of the Copyright Board, on both the collective side and the licensee side. The measures put in place, or proposed in Bill C-86, the budget implementation act, go a long way. They certainly give the government the tools to set deadlines for the Copyright Board to issue decisions. They make it clear that tariffs have to be proposed further in advance and for a greater number of years. If all these measures are acted upon and regulations are put in place, we could actually dramatically reduce the problems we've seen in the past with the timeliness of decisions and long retroactivity.

4:15 p.m.

NDP

Brian Masse NDP Windsor West, ON

I'm getting the sense that some people will like the fact that they get a quicker decision. Some people may not like the decision, or whatever, but at least, whatever it is, there seems to be pent up interest to get to the result sooner rather than later, as opposed to lurking about in limbo for long periods of time.

4:15 p.m.

Partner, Fasken Martineau DuMoulin LLP, Business Coalition for Balanced Copyright

Gerald Kerr-Wilson

That was an issue where there was almost unanimity amongst users of the Copyright Board. In every decision, you're going to have someone who's happier than someone else, but everyone agreed that decisions had to get out more quickly.

We were dealing with situations where the board was setting prices to be paid for music five years ago. No one knew what the price to be paid today was. If the government follows through on the regulatory authority that it's proposing under Bill C-86, that problem, at least, will be substantially resolved.

4:15 p.m.

NDP

Brian Masse NDP Windsor West, ON

Mr. Smith, do you have any comments on that?

4:15 p.m.

Senior Director, Intellectual Property and Innovation Policy, Canadian Chamber of Commerce

Scott Smith

I'll echo those comments. I'll also add that having the clear decision-making criteria was important, but also the ability to negotiate tariffs independently, basically taking a contractual approach that the Copyright Board would not intervene in those cases.

4:15 p.m.

NDP

Brian Masse NDP Windsor West, ON

Mr. Fewer.

4:15 p.m.

Director, Canadian Internet Policy and Public Interest Clinic

David Fewer

I'd echo those comments as well. Speed and efficiency were a huge concern with the Copyright Board.

One thing that I would raise that runs slightly contrary to that is the inability of interveners to participate before the Copyright Board. We found it a problem. Our organization spends a good deal of its time sticking its nose into copyright and other matters at the Supreme Court of Canada, where we're a productive participant whose participation is valued by the members of the court.

I'd like to think we could offer a similar role to the Copyright Board, a different perspective on a narrow issue. However, there is no way for us to do that before the Copyright Board.

4:15 p.m.

NDP

Brian Masse NDP Windsor West, ON

I didn't know that. Then you'll be locked out of the process at the Copyright Board, but regarding the decision that the Copyright Board can make, obviously we've had them in the Supreme Court and that's when you'd find your participation, at that point in time, as opposed to before.

4:15 p.m.

Director, Canadian Internet Policy and Public Interest Clinic

David Fewer

That's exactly it.

We've acted for parties who were properly participants before the Copyright Board as well. Their objective was to be interveners, to bring in a nuanced perspective, a unique perspective different from that of the other participants before the board, but they were told they had to be objectors.

You're either all in with the interrogatories...and let's be frank, they're fairly expensive. It's very expensive to participate at the Copyright Board.