Public Safety Committee on April 26th, 2007

[Gord Brown, Conservative, Leeds—Grenville, ON]

Okay. You don't have any problem with it becoming illegal to take a video camera into a movie theatre to make a movie?

[Prof. Michael Geist]

It's already illegal to go into a—

[Gord Brown, Conservative, Leeds—Grenville, ON]

Well, it's not illegal to take that video camera into the theatre.

[Prof. Michael Geist]

No. It is an infringement of copyright law to make an unauthorized copy of that movie. Full stop. If you go ahead with the intent to distribute, as we are led to believe is occurring, that then brings both potential jail time and penalties.

I would argue that we already have legislation to deal with this particular issue. Even with that, I would note two things. One, the U.S. has seen a proliferation of that kind of legislation, and it has been unsuccessful. Indeed the president of the National Association of Theatre Owners in the United States noted that the issue has expanded from a New York-Los Angeles issue to 15 states where this is now happening. I would also note that if we are going to criminalize that, we have to be very careful. Everybody walking in with a cellphone nowadays is effectively walking in with a camcorder as well. We have to be careful that this captures what I think copyright law already seeks to capture, which is those who are camcording for the purposes of distributing and actually profiting from that activity.

[The Vice-Chair, Liberal, Roy Cullen]

Thank you, Mr. Brown.

For the record, Mr. Geist, you made a comment that the notion had come up that it was a difficult burden to put on customs authorities to search and seize with that mandate in terms of counterfeit goods. I think Mr. Wappel threw that out as a proposition. What I thought I heard was Mr. Sotiriadis saying that there are many effective models around the world that do that. But anyway I'll just leave that there.

We'll go back to Mr. Wappel.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Far be it from me to lead the witness.

Mr. Sotiriadis, I'm going to read you a quote from an article by Professor Geist:

While the USTR report and its supporters seek to paint Canada as a laggard on copyright, this rhetoric ignores the fact that Canada is compliant with its international obligations and that Canadian law is consistent with the laws in most countries around the world. For example, of the three highlighted issues (WIPO ratification, copyright extension and camcording), only three of 192 United Nations members — the U.S., Singapore and the Czech Republic — have completed all three reforms.

Would you comment on that statement?

[Bob Sotiriadis]

I'll answer like a good lawyer. I think this statement is quite correct. I don't think the United States, necessarily, should dictate our decisions on our own legislation. The United States have in fact, to be quite frank, themselves not followed up on their own treaty obligations in such areas as patent law, for example. They complicate things for people from other countries who apply there.

I much prefer to use the fairness criteria. It's neutral. We don't get into arguments about whether it's organized crime, millions of dollars that are lost, or batteries. We don't have to argue whether it's electric goods, people, pretexting, or that we need safety in batteries. I think when we stick to a simple question of fairness and respecting the law and really putting in stronger civil remedies, at least, that don't cost much, we avoid a lot of this unnecessary debate.

I understand Mr. Geist's frustration with all those amazing statistics you get. They're very difficult to follow up on and they are contradictory.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

It's interesting what you say, because I'm hearing two different possible approaches: one is somehow to further criminalize matters in some manner, which obviously would involve the Criminal Code, which is federal jurisdiction; secondly, as you put it, to make civil remedies easier, which then would involve the Copyright Act and the trademark situation.

I'm curious as to how—

[Bob Sotiriadis]

Excuse me, or a new anti-counterfeiting act.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

This would be enforced civilly, presumably, by the people who are allegedly injured by the actions, taking it away from the resources of the federal government, except to the extent that you would have to, presumably, go before a Federal Court judge. So you'd have to have Federal Court judges, and one presumes the infrastructure that flows from that, although you don't need fancy trappings and things like that for a courtroom. You could have a courtroom in a simple room.

Is that your recommendation, then, if I hear it correctly, that it should be more moving towards simplified civil procedure to allow the people or the corporations that allege that they have been hurt by these actions to deal with it in a civil litigation way amongst themselves in the Federal Court?

[Bob Sotiriadis]

For me, the ideal situation would be to beef up the criminal section...a lot of the suggestions you've received. I think my suggestion is that if it's a question of competition for scarce resources and there are serious worries about abuse in the criminal system and the fact that there are criminal remedies that exist and why not use them and so on, it will, at the very least, give rights owners easier access through the civil remedies. That's what I'm saying.

I would be very pleased if we had more resources from the criminal side, and I also believe the customs part is part and parcel with civil remedies.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

That's fair enough. My own personal bias, just hearing the evidence—and by the way I'm very happy I came today, as it's very interesting—is that the law is already on the books to prevent those people who are breaching the Criminal Code. In 99% of the cases, the penalties that are imposed by the criminal law are already there. They're simply not being imposed by the courts and by the prosecutors who are asking for the penalities. That's my bias. Sorry.

Thank you, Mr. Chair.

[The Vice-Chair, Liberal, Roy Cullen]

Go ahead very quickly, please, Mr. Geist. We're just about out of time.

[Prof. Michael Geist]

I have just a very quick intervention.

I'm certainly sympathetic to those who see the potential for civil remedies to try to deal with this issue, but I think it's important to recognize that it's necessary to be somewhat cautious even there. In the United States they have statutory damages, creating the prospect of damages of $150,000 per infringement. That has an enormous amount of impact when you're suing teenagers and grandmothers, for certain, with allegations of peer-to-peer file sharing, for which the liability runs into the millions or even billions. But it also has a significant impact on potential innovation, when businesses looking to push the envelope sometimes are advised by their counsel that they're pushing the envelope and that there's the potential for some real liability.

We're one of the only other countries in the world to have statutory damages as well, at $20,000 per infringement, so let's note that. Pushing forward on beefing up the prospect of taking action from a civil perspective has the potential for some negative consequences as well.

[The Vice-Chair, Liberal, Roy Cullen]

Thank you very much, Mr. Wappel.

I'll respect the role of the chair and stay out of the debate further.

Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair, and thank you to the witnesses for coming.

I missed the last meeting, unfortunately, at which some of this was discussed.

Professor Geist, you talk about the rights of the consumer versus the rights of the producer and who makes the calls and so on. How far would you go in the suggestion of fairness to the consumer, in allowing a consumer to copy part of a DVD but not all of it, or part of something but not all of it? How far would you go, and who makes that call?

[Prof. Michael Geist]

The Supreme Court of Canada has already tried to make the call, arguing that we have fair dealing under the current Copyright Act, which, it argues, ought to be interpreted in a broad and liberal manner such that even copies, in certain circumstances, of full articles would be seen as fair dealing.

In the United States they have an even broader approach of fair use, which sometimes allows for even more. The problem I think we see is that technology, and sometimes the law supporting that technology, trumps even some of those very basic rights.

So even if we could agree that copying a song for personal purposes is covered by the private copying levy already, so that's already being compensated, if we're talking about movies, someone who, for the purposes of parody or education or a range of different things, might want to copy a portion of a DVD—I think it's pretty clear—ought to be entitled to do that. I think the Supreme Court of Canada would agree, and my fear is that technology is taking away those rights.

The prospect of these WIPO treaties will further take those rights away such that someone who seeks to exercise those rights might well find themselves subject to copyright infringement. Teachers who want to take a segment for something might well find themselves violating the law if they try to educate their students in that fashion.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Okay, thank you.

It's been suggested that Canada's customs regime fails to meet some basic requirements of model legislation under the World Customs Organization.

Very briefly, first, can you explain what the World Customs Organization is, who its members are, and what powers to advocate are given to customs officials in its model legislation? Perhaps Mr. Sotiriadis could answer that.

[Bob Sotiriadis]

I can't answer that.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Does anybody know who these guys are? No? Okay.

We talked about best practices and models from other countries and so on, whether that's France or otherwise.

Are you aware, Professor Geist or anybody, of border enforcement regimes that are in place in Canada's major trading partners among the G-8 or anywhere else? What other regimes allow border enforcement officers to have the authority to seize counterfeit goods on their own authority?

[Prof. Michael Geist]

I believe some of our trading partners do have stronger border measures. The United States would certainly be one such example. The question becomes whether or not they're effective. As I noted, one only needs to walk down Canal Street in Manhattan to recognize that this is not exactly keeping counterfeit goods out of the country.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

In your article, “Counterfeiting Can Kill”—I guess it was on your blog, and I'm sorry if I violated copyright by copying it—you suggested, and this is in reference to the last meeting that was held on March 29, that there was some focus on the desire to alter proceeds of crime legislation to include copyright, but that it was the copyright industries initially that had wanted it excluded. Have the copyright industries changed their mind, and if so, why?

[Prof. Michael Geist]

Yes, they have changed their mind. Initially they wanted it excluded. The sense was that the civil remedies, I suppose, might well allow them to go after the potential proceeds as opposed to the Crown itself through proceeds of crime. They now have, obviously, before that committee suggested that was something they'd like to see changed.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Okay.

Mr. Sotiriadis, you had asked for anybody to ask you to expand on the ideas you didn't get to expand on.

[Bob Sotiriadis]

I mentioned a few initiatives from the civil remedy point of view and the recordation system, with customs beefing up some resources, training.

Regarding the IP bar in Canada, we're used to giving training sessions. All the experienced counsel would be very happy to help with the crown attorneys with continuing education. Mr. Lipkus already mentioned that in his testimony.