Evidence of meeting #141 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 authors.
A video is available from Parliament.
4:35 p.m.
Associate Professor and Innovation Chair, Electronic Commerce, University of Toronto, As an Individual
I'm concerned about what's going to be put into the public interest.
4:35 p.m.
Partner with McCarthy Tétrault and Adjunct Professor, Intellectual Property Law, Osgoode Hall Law School, As an Individual
I'd give the government 95% in terms of what they've done. I take off two and a half marks because of the public interest. Competitive market is the way to go. It creates less uncertainty and the speed would be much better.
My last point is that they should have addressed harmonization of statutory damages across all collectives. That's a loss of two and a half marks there.
4:35 p.m.
Executive Officer, Intellectual Property Law Section, Canadian Bar Association
To be fair, there were a lot of issues with the Copyright Board in the past, and anything would have been a step up. This is generally, from the CBA's perspective, viewed as a positive, with the one condition that we take a wait-and-see approach. When it has taken more than seven years to implement a three-year tariff in the past, we're hoping we'll see some significant improvement on that, and quickly.
4:35 p.m.
Director, Art School, Université Laval, As an Individual
I didn't want to repeat what the critics said—
4:35 p.m.
Director, Art School, Université Laval, As an Individual
—but you heard here about the Copyright Board, that it's too slow and doesn't pay enough. A lot of people—
4:35 p.m.
NDP
Brian Masse NDP Windsor West, ON
Great.
Speaking of speed, I know I'm out of time, but thank you for being so quick. I appreciate it.
4:35 p.m.
Liberal
December 3rd, 2018 / 4:35 p.m.
David de Burgh Graham Laurentides—Labelle, Lib.
I'll try to use it wisely.
Mr. Sookman, my first question is for you. From your comments earlier, do you believe that copyright is an absolute property right?
4:35 p.m.
Partner with McCarthy Tétrault and Adjunct Professor, Intellectual Property Law, Osgoode Hall Law School, As an Individual
The rights that are established under the Copyright Act take into account the public interest. I don't think anybody has an absolute property right. It isn't in real property; it isn't in tangible property; and it isn't in copyright.
I do believe, however, that effective rights and effective remedies are essential, just as they are to any other property owner. We have laws against theft. We have laws against stealing. These are meant to protect property and to ensure that owners of property can exploit it in a marketplace.
I believe those same principles apply to copyright. It's not absolute, but they should be like property rights, to enable rights holders to have a framework they can use to develop new products, market new products, and license products. That does two things: It creates the products and it provides a consumer benefit. The idea that somehow there is this duality of completely divorced goals of copyright, whereby one side wins and one side loses, is really wrong. As with other property rights, copyright provides a mechanism that enables copyright owners to provide consumers with what they want: new products, new services and new innovation models. We're seeing that in the marketplace.
The problem is that there are these exceptions to property rights, which are in fact creating uncertainties, undermining markets. As with other property, we need to have a regime that protects property appropriately in the public interest.
4:35 p.m.
Associate Professor and Innovation Chair, Electronic Commerce, University of Toronto, As an Individual
Some of the most innovative countries, such as the United States, have the open and flexible fair use principle that Mr. Sookman is strongly opposed to. Also, they don't have site blocking, which he advocates for. I think you should be aware of that.
4:35 p.m.
Laurentides—Labelle, Lib.
I have three or four segues to where I want to go next. Thank you for that.
Mr. Sookman, you were an intervenor in Google v. Equustek. Can you give us a 10-second background on that and which side you took? You were quite public about it at the time.
4:35 p.m.
Partner with McCarthy Tétrault and Adjunct Professor, Intellectual Property Law, Osgoode Hall Law School, As an Individual
I was.
The Google v. Equustek case was the first case that established the possibility for global de-indexing orders against the search engine. We appeared in the British Columbia Court of Appeal and the Supreme Court of Canada, supporting the possibility that intermediaries whose systems were used to facilitate a wrongful act or whose systems were used to help defy a court order could be subject to orders of a court.
4:40 p.m.
Laurentides—Labelle, Lib.
In that case, the rules we have were able to be used to accomplish that.
4:40 p.m.
Partner with McCarthy Tétrault and Adjunct Professor, Intellectual Property Law, Osgoode Hall Law School, As an Individual
They were.
If your question is why we need a regime for site blocking, which I think is what you're getting at—
4:40 p.m.
Partner with McCarthy Tétrault and Adjunct Professor, Intellectual Property Law, Osgoode Hall Law School, As an Individual
—then let me tell you why.
First of all, the site-blocking regimes around the world have proved to be effective and to work. Some of the detractors of it oppose site blocking before fair play and say, “Let's have courts do it.” Then they show up before this committee and say, “No, let's not have courts do it.” Therefore, what's the effect? They say, “Let's just leave it.”
When we come to site-blocking orders, although I believe the equitable jurisdiction does exist in the courts, there are questions of public policy that are for Parliament to really flesh out. Let me give you some examples.
There are going to be questions about what type of sites should be blocked. Should they be primarily infringing, or should they be something else? What factors should the court take into account when deciding to make an order? Who should bear the cost of site-blocking orders? What method should be ordered to be used for site blocking? Then, how do we deal with the inevitable attempts to circumvent these orders, which, by the way, courts have said don't undermine their effectiveness?
I believe those questions are fundamental ones for Parliament. Courts can make them up, but we might end up with one or two trips to the Supreme Court and with rights holders and users spending a ton of money.
Australia enacted specific legislation. Singapore enacted specific legislation. The EU has it through all member states. Why? That's because they recognize it's the most effective way to deal with foreign sites that disseminate piracy, and because they want to establish criteria as to what the proper framework is.
We need that framework. Courts can make it up, but there are going to be debates and they may not end up where Parliament would end up. That's why Parliament should deal with it.
4:40 p.m.
Laurentides—Labelle, Lib.
Okay.
Mr. Katz, you made quite a few expressions.
4:40 p.m.
Associate Professor and Innovation Chair, Electronic Commerce, University of Toronto, As an Individual
Yes. When you think of whether site blocking is effective, you have to think, effective in what? One question is whether it's effective in blocking those sites. It might be, even though people can work around that. That's one type of effectiveness. However, if the question is whether it's effective in stopping piracy, or even better, in transforming the pirates into actual paying customers, the studies that Mr. Sookman and his clients have relied on do not show that. They show very little transformation within a period of time after the blocking orders have been done.
