Mr. Speaker, I am torn between joy and fear as regards this bill. I am pleased of course as regards neighbouring rights, but extremely concerned about the list of exceptions that is being added.
Let me first put the issue in its proper context. The first phase of this exercise was Bill C-60, which was passed in June 1988 and which is now followed by Bill C-32, to add or remove certain rights to authors.
As we know, copyrights apply to any literary, dramatic, musical or artistic work that is original. This legislation applies to a slew of works, including books, dictionaries, maps, sculptures, paintings and related works such as translations, summaries and adaptations. It applies to both published and unpublished works.
The bill creates two types of rights. Moral rights recognize the author as the owner of the work and, consequently, his or her right to authorize its use in conditions deemed appropriate. There are also economic rights, which can be divided into two major categories: those dealing with reproductions and those dealing with public performances.
As we know, copyrights usually apply for a period of 50 years after the death of an author. The act provides for some exceptions, the most important one being the fair use of a work for private studies or research. I will elaborate on these exceptions later on.
Phase I of the review of the copyright legislation resulted in Bill C-60, passed in June 1988, which extended copyrights to computer programs, extended moral rights of creators over their works, granted the right to exhibit visual arts, abolished compulsory licensing-the so-called K-tel clause, which allowed the reproduction of acoustic works for a payment of 2 cents for the recording-replaced the Copyright Appeal Board by the Copyright Board, and recognized collectives.
A collective is a group of copyright holders, such as SOCAN. However, the first phase, which resulted in Bill C-60 being passed in 1988, did not solve the issue of private copying, or home recording, and did not include the recognition of neighbouring rights.
As well, Bill C-60 did not recognize other creators' rights, such as those claimed by the copyright coalition. Between 1988 and 1994, four series of amendments were made to the act, following the commitments Canada made in the Free Trade Agreement, NAFTA or treaties signed with the World Trade Organization.
The copyright legislation has been in force for about fifty years. It was amended in June 1988 and now this amending legislation, Bill C-32, has five major goals. It sets up neighbouring rights for performers and record producers. We commend this decision. A regime is established in relation to the private copying of sound recordings. It provides for a levy on blank audio cassettes manufacturers. That is also a step in the right direction.
It protects the exclusive markets of Canadian book distributors, what we call the right of distribution. It has some weaknesses but it is still acceptable. It increases the exceptions where no royalties or no neighbouring rights can be claimed. We are shocked to see that the list of exceptions has gone from one page to 12 pages. That is unacceptable and goes against all the progress made in Canada and all the legislation passed throughout the world.
Five, the bill amends the current legislation in order to improve collective administration and civil remedies. In that area, it provides for the usual process.
First of all, I will talk about neighbouring rights. I will remind members that these are rights given to performers and producers of sound recordings. For example, when Renée Claude performed a song, she did not have any rights. Now she will have what are called neighbouring rights, and so will the recording company.
At the present time, when radio stations play the recordings of these performers, the authors and composers receive royalty payments, but not the performers or the producers. So it is a step in the right direction. However, there is a problem on which I will elaborate a little later on.
Members will recall that neighbouring rights are recognized in 50 countries. However, they are not recognized in the United States. Therefore it was important for Canada to adhere to the Rome Convention. It is essentially radio stations that will have to make payments under the neighbouring rights system. However, and this is where the problem is, there is a $1.25 million exception, which means that if a radio station's advertising revenues are less than $1.25 million, it will pay only $100 in royalty payments. Since when can one take somebody else's rights and decide how much that person will receive in compensation? Why not let the free market play its role since we have a tribunal and people who could established the amount that should be paid by users?
Do you use your neighbour's car without his permission and tell him afterwards that you will give him $10? No. You negotiate before using it. It is as simple as that. This amount of $1.25 million seems very high, especially that this system would be in place for a trial period of five years.
I understand that broadcasters wish to be exempted from paying neighbouring rights. In 1993, AM stations lost $59 million, while FM stations made profits of $20 million. They are claiming that the introduction of a neighbouring rights system would shut down radio stations and result in lost jobs.
Like ADISQ, the Bloc Quebecois feels that the raw material is the talent of artists and producers, and that the use of this talent must be recognized. The Copyright Board has the mandate of setting the neighbouring rights tariff, taking into account users' ability to pay. So let us let the Board do its work, instead of setting $1.25 million in advertising revenue as the cutoff, under which only $100 would be payable.
The other major argument of broadcasters against neighbouring rights is that the introduction of such a system would see Canada losing money. We know that clause 15 of the bill provides that Canada will pay neighbouring rights to Canadian holders of neighbouring rights and to those who are signatories to the Rome Convention. SOCAN receives payments from abroad, and it duly makes its own payments. A balance can therefore easily be struck between money coming into and going out of Canada.
Finally, according to the Donner report, neighbouring rights are an important tool for the future, especially with the advent of cable digital broadcasting, which will distribute digital quality music without interruptions from a announcer or any advertising. This distribution represents a source of revenue or important losses for performing artists and producers of sound recordings if the neighbouring rights regime is not introduced.
With respect to neighbouring rights, this is exactly the position adopted by the Bloc Quebecois. The Bloc made a firm commitment to support the introduction of neighbouring rights during the last election campaign. We are therefore consistent with what we promised during the campaign. In addition, since it was elected, the Bloc Quebecois has, on many occasions in the House and before the heritage committee, called for neighbouring rights legislation.
The Bloc Quebecois feels that by finally granting neighbouring rights to our performers and producers of sound recordings, Canada is making up for some very embarrassing lost time. It is regrettable, however, that the government limited itself to sound recordings and has not extended this right to audiovisual recordings. The Bloc Quebecois feels that exempting the first one and a quarter million in revenue from the payment of neighbouring rights is a large concession, too large, to the radio broadcasting industry. We will be making the necessary representations in order to lower this unacceptable cutoff substantially.
It is in fact the responsibility of the Copyright Board, not the legislators, to see that fees charged are compatible with the users' ability to pay. I must point out as well that no one wants to see any radio stations disappear, so the Board will take the stations' ability to pay into consideration.
Finally, the Bloc Quebecois would like to offer assurance that the creation of a new copyright scheme will not interfere with copyrights. To that end, section 90 ought perhaps to be strengthened to ensure that copyrights will be protected.
Neighbouring rights are an indispensable tool for bolstering our recording industry, whose Achilles' heel is underfunding. The recording industry is, moreover, dominated by multinationals. In Canada, Canadian-controlled businesses have marketed 71 per cent of Canadian content recordings. In Quebec, independent labels account for 31 per cent of the market, as compared to 10 per cent in Canada.
What is more, although foreign-owned recording companies are profitable, Canadian-owned ones are just beginning to be. As for the smaller ones, with annual earnings of under $100,000 and essentially Canadian-controlled, these have never been profitable, but they do play an important role in the development of Canadian talent, as the Donner report states on page 4. As far as neighbouring rights are concerned, yes, although the million and a quarter figure strikes us as completely exaggerated.
As for private copying, for which charges would be collected from manufacturers and importers of blank audiotapes, essentially cassette tapes, and then distributed among actors, composers, performers and producers of sound recordings, we know that 25 countries have adopted regimes that provide for collecting charges to compensate for incurred losses.
Last year, nearly 44 million of these blank tapes were sold. It is estimated that 39 million of them were used by consumers to privately copy sound recordings made by composers and artists who must earn a living from the sale of these recordings.
The Canadian sound recording industry loses significant revenue estimated at $324 million a year as a result of home copying. The Bloc also has a very clear position on this issue, which we expressed during the election campaign. We made a commitment to support charges on private copying. We also were in favour of collecting such charges on videotapes. We are therefore disappointed to see that the government went only halfway.
The Bloc is also happy to see that charges will not be set by legislators but by the Copyright Board. We would have liked the same thing for neighbouring rights.
As for distribution rights, we know that this bill will prevent parallel imports. The Bloc Quebecois therefore supports such a measure because it would strengthen the Canadian publishing industry, although it would have more of an impact in English Canada than in Quebec.
On the exceptions, however, we totally disagree with the government and we intend to work hard in this area when the bill is reviewed in committee. The current Copyright Act already provides for some exceptions. It provides for the use of works for the purpose of research and private study without having to pay royalties.
It provides for the use of works for the purpose of criticism, review or news summary preparation, if the source is mentioned. It provides for the public representation or publication of paintings and drawings of a work. The publication of short passages from
literary works in which copyright subsists in a collection, mainly composed of non-copyright matter, intended for the use of educational institutions is also allowed provided certain conditions are met. The list of exceptions goes on; it is about a page long, but these are the four main ones.
Bill C-32 considerably broadens these exceptions as they apply to educational institutions, libraries, archives and museums. To existing exceptions, it adds-and this is no small thing-the permission to use and reproduce works for the purpose of giving an assignment, test or examination; the permission to reproduce works that are not available in a medium of suitable quality.
The bill gives the right to perform in public and to broadcast sound recordings and television or radio programs in educational institutions. It also allows the reproduction of current affairs and other programs, and broadcasting in educational institutions. It allows libraries, museums and archives to reproduce works for management and conservation purposes, and to make photocopies of newspaper and magazine articles, under certain conditions, for their clients. It also allows these institutions to do authorized work.
It exempts libraries, museums, schools and archive services from their responsibility regarding production made by individuals on their photocopying machines. It recognizes the "no fault" principle when copyrights are violated incidentally and unintentionally. It recognizes the right to adapt works for the visually handicapped. Finally, the bill confirms the right of educational institutions and agricultural or industrial fairs to use works if the event is a non profit event.
You will understand that creators, particularly in Quebec, were stunned by the scope of the exceptions introduced as part of the copyright review. This exercise was meant to improve things, but the result is 12 pages of exceptions. This is unacceptable to authors and composers. Generally speaking, creators feel these exceptions violate the spirit of the act, which seeks to protect their rights, not deprive owners of their due. They also feel Parliament should have left users and collectives negotiate the use of their works, as is done with the Quebec education department and the federal government, and that these exceptions will create a jurisdictional nightmare. The terms used lend themselves to such interpretation that the door is wide open for users to refuse to pay their fees, until the courts clarify the provisions of the bill.
We believe that the exceptions are so convoluted as to be unmanageable, that they leave the door open to confusion, that they legalize delinquent behaviour by large institutions, that, under the pretext of balancing everyone's interests, they favour large government institutions to the detriment of much less powerful management companies.
The position of the Bloc Quebecois in this regard is also very clear. The Bloc Quebecois strongly protests this tactic by the government, which is taking advantage of the reopening of the copyright legislation to increase from one to 12 the number of pages devoted to exceptions. The Bloc Quebecois feels that these exceptions are to the detriment of authors and sees no reason why museums, libraries, schools and archives, which pay their employees, their oil and their electricity bills, should cheat authors, composers, performers and producers of their economic rights.
The Bloc Quebecois intends to show how these exceptions invalidate agreements that already exist between these large institutions and management companies. The Bloc also intends to show how these exceptions, in their present form, will lead to confusion and will pave the way for schools, museums, archives and libraries not to pay creators their due.
I would like to give some examples of these unacceptable exceptions. In clause 29.5 the following exception is described: it gives educational institutions the right to perform a work live or in public, to broadcast in public a sound recording or a performer's performance that is embodied in a sound recording, on condition that this is done on the premises of an educational institution, for educational purposes and not for profit, before an audience consisting primarily of students of the educational institution, instructors of the institution, or any person directly responsible for this institution. That is clause 29.5.
Now to the questions we in the Bloc are asking and, of necessity, they will be the questions asked by the creators as well. Why is such an authorization being given to educational institutions? Is an auditorium part of an educational institution's premises? That is not determined. Who will determine whether the event was held for educational purposes or to raise money? Who will determine whether the entrance fees were collected to generate profit or to meet the costs of holding the event?
Who will be stationed at the door to ensure that the audience are indeed students and staff of the educational institution? Will their parents be considered persons directly responsible for setting a curriculum for the educational institution? Do you see all the questions that just one of these exceptions prompts us to ask?
Now, for another exception in clauses 29.6 and 29.7. The purpose of this exception is to allow educational institutions to make a copy of a news or other radio or television program for educational purposes, to be replayed for the students of the institution. Copies may be retained for one year in the case of news broadcasts, and 30 days for other recordings, without copyright, in order to evaluate the educational suitability of such a program.
Then the royalties must be paid and the program may then be retained in keeping with the arrangements entered into with the collective society. The educational institutions must keep a log of their copies.
Imagine the complexity of such a disposition. It prompts us to ask a number of questions. How will the collective societies be able to administer this administrative muddle? Will programs such as serials, for example, be considered by a group of teachers in an effort to decide whether it is really a practical teaching tool? Why did the government not let educational institutions negotiate these points with collective societies as is done in other areas?
Let us consider clause 30, which allows the staff of libraries, museums and archives to make copies of works for clients for personal research purposes, on the condition that the individual satisfies the library, museum or archive that they will be used only for private study or research. Dream on. More questions arise about this clause. What criteria determine for library, museum or archive personnel that the copy requested is for personal ends? Here again, we have a practical example of the crazy limits of the exception.
Clause 30.3 provides that libraries, museums and archives will be cleared of responsibility for the use of their photocopiers, through the affixing of a notice above the photocopier asking users not to contravene the Copyright Act. What about the deals negociated by UNEQ and CANCOPY, which grant licenses to some education institutions in order to allow reproduction by their users for research purposes? Does this mean that, if someone infringes the Copyright Act by phocopying a book, for instance, the school authorities are going to shut their eyes and will not be held responsible?
Since when is an institution not responsible for its reproduction equipment? Photocopiers have become like coat racks with signs posted saying: "We are not responsible for photocopied material". That is what this section is saying. Clause 30.7 also says: "It is not an infringement of copyright to incidentally and not deliberately" use a work. Are there any other laws which state that a person who does something incidentally and not deliberately is not responsible? The guy who gets in his car after drinking and kills someone did not do it deliberately and therefore is not responsible. It is the same thing. That what is said here respecting copyright.
As I said earlier, the position of the Bloc is clear regarding the exceptions: they are unacceptable and far too many. The existing list was sufficient.
As for civil remedies, the last point I want to address, we know that copyright owners claim the present legislation does not protect their works because remedies provided are inappropriate, time-consuming and expensive. The measures proposed to rectify those irritants are simplified legal procedures that ease the process and lessen the potential costs of a lawsuit.
As for statutory damages, when infringement of copyright has been proven, the claimant can choose to have the amount of damages determined according to a schedule provided by the act.
Measures are proposed to prevent through injunctions experienced infringers from circumventing remedies, and to facilitate the granting of such injunctions. The Bloc essentially agrees with the part of the bill dealing with civil remedies.
I will conclude my remarks on the bill as a whole. Part II of Bill C-32 represents two steps forward, some sidesteps and many steps backwards. The steps forward are the recognition of neighbouring rights and levies on blank cassettes. The sidesteps are the exemption granted to broadcasters on the first $1.25 million in advertising revenue, and the steps backwards are unequivocally the exceptions added to the list.
This uneasiness is probably caused by the fact that the legislative aspect of copyright is the responsibility of Industry Canada not of Heritage Canada, which would have better defended creators' rights and would have been more impervious to the lobbying of the broadcasting industry and government agencies.
As a result, Part II leaves a bitter sweet taste, a mixture of emotions going from happiness, since new rights are recognized, to disappointment, as in the same breath we can wonder to what extent they really are recognized, and because copyright is being limited in a very real and concrete manner, without any valid reason.
Therefore, the Bloc Quebecois intends to work very hard on the heritage committee to analyze this bill after second reading, to improve, modernize and amend this bill which is an essential tool of policies promoting the cultural development in Canada and Quebec; this will have to be done with the greater respect for creators who are the very basis, the raw material, of this whole industry.