Evidence of meeting #140 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 rights.
A video is available from Parliament.
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Voices
Oh, oh!
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Counsel, Macera & Jarzyna, LLP, As an Individual
In fact, I'll send you material through the clerk.
They have a provision there, section 115A, that deals with site blocking and it's fairly well balanced. I looked at it in detail and there is some recent case law on it. I'm trying to remember the name of the case. Again, I'll send you the information.
It requires rigorous judicial process, rule of law and fairness to the other side. The injunction can't be any longer or broader than absolutely necessary. It's a balanced proposal. The new proposal would get rid of some of the rule of law and protective aspects of it and allow the injunction to be a lot broader and a lot longer and a lot wider than necessary. It might interfere with freedom of expression and a whole bunch of stuff.
I'm not trying to keep a secret from you. I'm just saying that the current version seems to be working really well, but that's not good enough for the big record and movie companies who always want more.
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Counsel, Macera & Jarzyna, LLP, As an Individual
And the U.K. doesn't have a specific provision, but they have some—I looked at it quickly—reasonably sensible jurisprudence.
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Partner, Hayes eLaw LLP, As an Individual
Yes, as I think I tweeted this morning, the Australians have gone all in on site blocking, and they're the first country really to do it. It's a very interesting experiment.
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Partner, Hayes eLaw LLP, As an Individual
Yes, the Chinese didn't even have laws to do it.
They've really gone all in and it's going to be very interesting to see how it turns out. If anything, I would have thought most other countries would want to sit back for the next three, four, five years and see how good or how bad it turns out, as opposed to necessarily following what they did.
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Laurentides—Labelle, Lib.
Mr. Hayes, you offered to talk more about section 30.71 in your opening remarks. You have 30 seconds to do so.
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Partner, Hayes eLaw LLP, As an Individual
I had proposed five things in my written provisions that should be in 30.71: it can involve human intervention; it's not limited to automatic processes; it's not limited to instantaneous processes; obviously machine learning is a technological process. These are the things that I think would necessarily be done, but frankly, the kind of proposal that Mr. de Beer is making, where you have a non-exhaustive list of fair use that mentions machine learning, mentions incidental reproduction, I would have thought that would be a solution to so many of these things and would not require a specific list of things that we have to try to deal with on a going-forward basis.
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Liberal
The Chair Liberal Dan Ruimy
Thank you very much.
Now we move to Matt own-the-podium Jeneroux.
That's what it says there.
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Edmonton Riverbend, CPC
Thank you, witnesses. It's good to see a thorough study of copyright continues, as back in my previous time here.
Mr. Chair, do I have five minutes?
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Edmonton Riverbend, CPC
Thank you.
I do want to come back to your comments, Mr. de Beer. I'm still struggling to understand why, regardless of whether it's five years or it's 10 years in terms of the mandatory review.... I believe that what we're trying to accomplish as a committee is to look at the long view. We're trying to project what we don't know is essentially determined in copyright. There's so much in terms of technology in the last five years. Things like Twitter and social media weren't to the extent they are today.
I've always supported the five-year review, but your raising it has me a little confused and questioning it somewhat. To reconcile the new technology piece with not doing a review at all, help me out a little.
Mr. Knopf, maybe since you hold the same position, you could also comment on this.
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Prof. Jeremy de Beer
One of the problems is that it takes away some of the responsibility to create a technologically neutral act in the first place, because people think they can just fix it again when they reopen it five years later. That's one problem.
Another problem is that it's very politically expedient. I get that. Everybody's coming here. There are 182 witnesses. They all want something, and you can't give everybody everything they want, so it's very nice to say, come back in five years and we'll talk again. It's very politically expedient, but it just means everybody lines up every five years and asks for the same thing. I've been around this for only 15 years, not as long as some of my colleagues here, and really, it's tiring. It's just the same debate over and over again. It's not very helpful.
I think those are really the main two problems. It's a disincentive to draft technologically neutral principles in the first place, and it just gets us on this constant hamster wheel of lobbying.
I'm not saying the act doesn't need to be reopened, but every five years.... The other part about this is that we don't even know. The implementation of the last reforms is just working its way through the court. All of the regulations to tie up the loose ends from the last batch of reforms aren't even in place yet. There was a Supreme Court decision in the last couple of months dealing with the notice and notice provisions.
It's just too soon. We don't know if things are working or not working yet.
5:05 p.m.
Edmonton Riverbend, CPC
Sorry, Mr. Knopf, just before I go to you, I want to follow up on some of that, quickly.
The YouTube exception, for example, it came out of the last review because YouTube was a new thing, if you will. Who knows what five years from now will bring, so in terms of not reviewing it, how do we react to that? Are you saying we put in draft legislation when those exceptions come up? Because then I worry that there are other impacts on certain things, and we may or may not know what those things are.
5:05 p.m.
Prof. Jeremy de Beer
The YouTube exception, the user-generated content exception, the text and data mining exception, and all of these micro-exceptions for libraries and archives and museums would all be unnecessary if we just put two words in the act: “such as”. It's a much simpler solution that will stand the test of time.
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Counsel, Macera & Jarzyna, LLP, As an Individual
There's an old song. I won't try to sing it. The fundamental things apply as time goes by. It's in Casablanca. Some things just don't change, even since the first copyright act in 1709. Certain principles don't change very much, and they certainly don't change very quickly.
As I said, it's a really bad idea to try to get ahead of things in the interests of being smart and tech-savvy. If anyone had listened to Jack Valenti, Hollywood as we know it might be dead, if his own industry had listened to him.
It's a big mistake to try to react quickly to technology, because these things don't really change. The details do and the market sorts it out. The best copyright act the world has ever seen was the 1911 U.K. act, which was really short and very general and really simple. Thank God, Canada still has the skeleton of that. The U.K. has gone off the deep end with details, and the U.K. judges hate it. Everybody hates it because they move too quickly, too often.
Working on this VCR case was the first thing I did when I joined the government as an analyst back in 1983. I wrote a paper as to why we don't need legislation.
I'll leave you with one other example. In 1997, I believe—or maybe it was 1988; no, I think it was probably 1997—some wise bureaucrat over at heritage inserted an exception in the Copyright Act called the dry-erase board exception. It said it was okay for a teacher to take chalk or a marker and write on a dry-erase board by hand as long as it was then erased with a dry instrument. I did a sarcastic piece in the newspaper, and the cartoonist showed a janitor using a wet brush. It was a question of whether that was infringing. Mercifully, that frankly stupid exception has been gotten rid of, but this shows the level of detail that people can get involved, with all the best intentions, that are completely counterproductive.
Again, I'm happy to agree with Jeremy on this. I was trying to find the quote—Winston Churchill or somebody. An official came to him and said there was a terrible crisis and he must speak to him immediately. Churchill said, if was still a crisis the next day, he should come back and they would talk about it.
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Liberal
5:10 p.m.
Liberal
Majid Jowhari Liberal Richmond Hill, ON
Thank you, Mr. Chair. I'll be sharing my time with Mr. Lametti.
In the two and a half minutes that I have, I'd really like to go back to Mr. Hayes.
Mr. Hayes, in your testimony you indicated that there were six issues that you wanted to talk to us about. You highlighted three of those, and then you ran out of time. With all my other questions being answered, I would really like to give you two and a half minutes or two minutes to be able to highlight those three. I know they are part of the submission, but it would be good if everyone could benefit from it in a quick two minutes. Thank you.