Debates of Nov. 14th, 2011

Copyright Modernization Act

[Manon Perreault, NDP, Montcalm, QC]

Mr. Speaker, it is difficult to try and understand an ill-conceived bill that does not really fix the problems in the current law. The Canadian government wants to reintroduce former Bill C-32 in the hopes of modernizing the Copyright Act. After listening to many expert witnesses speak on this topic in 2009 and after consultations, this government chose to table a catch-all bill.

It is true that Canada needs new copyright legislation, but this one is confusing. It contains too many major problems and, in certain cases, creates problems where there were none before. The government has managed to alienate intellectual property expert Michael Geist, the cultural industries, the Writers Guild of Canada and SOCAN, the Society of Composers, Authors and Music Publishers of Canada, to name just a few.

Reforming copyright law in Canada is not simple. It is quite complex. I greatly fear that the government's proposal is not the right solution. On one hand, the government is allowing for fair use for educational purposes, but on the other hand, it is imposing strict rules with regard to digital locks, allowing them to supersede all other rights guaranteed under the Canadian Charter of Rights and Freedoms. The Writers Guild of Canada has been very clear about digital locks: adding a digital lock effectively blocks the creators' current source of income and denies consumers the same rights they are guaranteed in other clauses of the bill.

The United States adopted similar legislation 10 years ago, and we have already seen the major shortcomings of such legislation in recent years. Their bill has reduced fair access to electronic resources, limited individual freedom of expression, legislated contradictory terms, resulted in unending and expensive legal battles against the public and has hindered innovation. Why is this government proposing a bill based on that same model? Canada should be a leader in copyright law instead of repeating the mistakes of its neighbours. Canada has to move forward and show leadership in this area, especially given the astonishing number of artists here who are brimming with talent.

The Minister of Industry and Minister of State for Agriculture announced that Canadians would soon have modern copyright laws that protect and help create jobs, promote innovation and attract new investment. However, quite the opposite seems to be true. Over 80 arts and culture organizations believe that Bill C-11 will be bad for Canada's digital economy. Howard Knopf, a lawyer who specializes in copyright, raises an important question. He says that this bill does not encourage innovation and that, in fact, it inhibits it. He wonders how making it illegal to bypass a regional code in order to watch a legally imported Bollywood DVD that is not available in Canada is going to encourage innovation.

The bill could seriously affect artists' incomes, even though they are already underpaid. A Conference Board of Canada report found that the cultural sector generated approximately $25 billion in tax revenue in 2007. That is more than three times higher than the $7.9 billion that was invested in culture by all levels of government in 2007. We must also consider that the average salary of an artist in Canada is $12,900 a year, which is a pittance. This bill will deprive artists of million of dollars in revenue and jeopardize their market share.

Canada can be proud of its artists and creators. Why does this government want to penalize them? Does the government think that, with this bill, it can download additional costs onto artists, who are already underpaid? How does the government expect to create new jobs like this? It would definitely be more effective to examine the issue of job creation separately rather than trying to pass this incoherent bill off as a job creation strategy.

The Canadian Association of University Teachers was clear: this bill needs to be amended. The NDP is proposing that we delete the clauses that criminalize the removal of digital locks for personal, non-commercial purposes. This would easily allow people who have a print disability to change the format of electronic resources so they can access them.

What worries me is the impact that this bill would have on people with a print disability, which includes those with learning disabilities and those who are visually impaired. The accessibility of resources is clearly not a priority for this government. It is important to remember that, last year, the Federal Court ordered the government to make its websites accessible to people with visual impairments. The court gave them 15 months to fix the problem and we note that the government has only three months left. This is an example of the lack of consideration that this government has shown with respect to the accessibility of resources. The hon. members will understand my concern about the plans for digital locks.

What also concerns me is that the government held consultations on the accessibility of library resources. For three years, the government consulted experts on the issue and listened to people with print disabilities describe their experience in trying to access resources.

I have the clear impression that the government did not listen to anything they said. This bill may actually create obstacles for people with a print disability in accessing resources. We have to protect artists' and authors' creations but we also have to be careful not to create problems for people with visual impairments. We must strike a balance; such a thing is possible. Unfortunately, the government did not do the research it should have when drafting this bill. It would be preferable to consider any amendments that could improve the legislation and make it better reflect what is at stake for Canadians.

Right now, Bill C-11 could have a number of unintended consequences, which is why it is important to consider amendments to improve the Copyright Act. One possible effect of the bill would be to increase the current levies on cassettes, DVDs and CDs, for example.

The bill could also create grey areas that would be difficult to manage and would require an endless, complex and inefficient list of exceptions. For example, the bill allows users to record television shows to watch them later but does not allow them to create a library of recorded content. What is the difference? How do we know whether two or three recorded episodes of a television show constitute a library or not?

Furthermore, is it illegal to transfer the music that we listen to on a CD player to a computer in order to listen to it on an MP3 player? According to this bill, the answer seems to be yes. However, according to the Conservatives, we do not have to worry because it is highly unlikely that the artist will sue us.

This bill creates all manner of difficult situations where judges will have a very hard time giving a ruling. This bill does not tackle the real problems faced by today's artists and consumers. In fact, it runs the risk of making things even more complicated.

I am asking this government to take our objections to this bill very seriously. I am asking the government to work with copyright experts who have identified serious problems with the law and to improve their proposals for modernizing the Copyright Act by taking into consideration users, artists and persons with a print disability.

[Geoff Regan, Liberal, Halifax West, NS]

Madam Speaker, I congratulate the hon. member on her speech. She is perhaps aware that Conservative members shared their comments in a letter to their constituents stating that it would be acceptable to break the new law in order to circumvent digital locks.

Government members have apparently been saying that it would be okay to break the new law and to circumvent digital locks. The member for Calgary Centre wrote:

If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a lawsuit against the consumer, due to legal fees and time involved.

In other words, he is suggesting not to worry about this, that the law can be broken and nothing would happen, that really we are encouraging consumers to break the law.

What does that say about the Conservatives' position, that they are telling Canadians to break this law that they have not passed yet?

[Manon Perreault, NDP, Montcalm, QC]

Madam Speaker, I think I will quote Michael Geist, who said that the foundational principle of the new bill remains that any time a digital lock is used—whether on books, movies, music or electronic devices—the lock trumps virtually all other rights.

This means that fair dealing rights and the new rights set out in Bill C-11 are no longer in effect once the copyright holder places a digital lock on the content or the device.

[Paul Calandra, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Madam Speaker, I listened intently to my colleague's comments.

I note that there are some countries around the world where TPMs are protected. We have not seen an actual decline in the availability of visual material in all of those countries, but we have seen an increase in it. I wonder if my colleague could cite one example for me of one country where there has been a decline in the availability of creative works because of TPMs.

Many opposition members have been focusing on the destruction of course notes for students. That is not actually in the bill. Students are not going to be required to burn their notes at the conclusion of their course work. That is simply not true.

I wonder if--

[Charlie Angus, NDP, Timmins—James Bay, ON]

Madam Speaker, I rise on a point of order. I would not want the member to mislead the folks back home, but it is in the bill. If he were to read the bill, he would understand that. It is on page 23 of the bill. If he were to read the bill--

[The Deputy Speaker, NDP, Denise Savoie]

Order, please. The hon. member knows that this is debate. I would ask the hon. parliamentary secretary to conclude as there is little time left for a response.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I would like to respond to the point of order, Madam Speaker. One of the--

[The Deputy Speaker, NDP, Denise Savoie]

Order. The matter is settled. This was not a point of order. Could the hon. parliamentary secretary conclude his response?

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

You are quite correct, Madam Speaker. It was not a point of order because the opposition is wrong on most facets of Bill C-11.

Could the hon. member cite one instance out of those 80 countries, where TPMs are available, where they have seen less creative work? Could she cite for me specifically where--

[The Deputy Speaker, NDP, Denise Savoie]

The hon. member for Montcalm. There is one minute left to respond to the question.

[Manon Perreault, NDP, Montcalm, QC]

Madam Speaker, the NDP's position is clear. The NDP believes that Canadian copyright laws can balance the right of creators to fair compensation for their work and the right of consumers to reasonable access to content.

In other words, the NDP wants to examine all the amendments that could be made to the bill in order to create a fair royalty system for artists, as we have now. This bill would wipe out millions of dollars in revenues for artists. That is what we are talking about.

[Matthew Kellway, NDP, Beaches—East York, ON]

Madam Speaker, I am pleased to speak to Bill C-11, the copyright modernization act.

Without question, copyright is a very complex issue, and on that I think we can all agree. It is required as a balancing of competing demands of multiple interests.

At the root of this issue is the fact of unrelenting technological advancements. Therefore, I rise today to speak to this issue with some trepidation. I am not a very technologically sophisticated kind of guy. In the race to keep up with technology, my 15-year-old blew past me some years ago and has disappeared over the horizon. My 12-year-old has lapped me several times and now I simply marvel at my 7-year-old's facility with all technological matters. It seems like it is intuitive and, to extend or abuse the metaphor, I hear his footsteps right behind me.

My challenges with technology notwithstanding, I do realize and recognize that there are great possibilities and new horizons that open up to us on our current trajectory of technological development. These possibilities emerge from our ability to explore vistas that were not available or accessible to us before. Much of the broadening of horizons comes from our greater exposure to and easier access to the arts of all kinds, but performing arts in particular.

From this we all benefit. It gives us as Canadians a better sense of each other across this vast land with such tremendous historical, cultural and linguistic diversity. Collectively, it gives us a greater sense of our national identity and our place in this world. It gives us, as Canadians, an existential foothold. The reverse is also true. It gives others around the world a better sense of who we are as Canadians. For all of this, we should be thankful and understand ourselves to be in the debt of our Canadian artists. One asks where our creative Canadians are represented in the bill. Where in the bill do we acknowledge their role in our lives and acknowledge our debt to them?

In the answers to these questions, we discover the fatal flaw of the bill because artists are locked behind the digital locks that prevent the sharing of product and the opportunity to support themselves economically. What our artists need and what we all need is to take advantage of our technology to enhance access to creative products hand-in-glove with enhancing compensatory opportunities for our artists. The value of proceeding in this fashion is not just cultural but economic.

A 2008 Conference Board of Canada report found that the cultural sector generated approximately $25 billion in taxes for all levels of government in 2007. This amount is more than three times higher than the $7.9 billion that was spent by these governments on culture in that year.

The Alliance of Canadian Cinema, Television and Radio Artists, better known as ACTRA to many, estimates that Canada's arts and culture industries contribute $85 billion per year to our country's economy. This works out to roughly 7.4% of Canada's gross national income and 1.1 million jobs, equivalent to about 6% of Canada's labour force.

In stark contrast, the average earnings of a Canadian artist in 2009-10 was just $12,900, well below the poverty line. Far too many people in Canada's arts and culture community have no choice but to subsist, depending on the generosity of friends and family to get by. They are relegated to a state of quasi-survival that does not reflect the tremendous economic and cultural benefits that we all reap from their talents.

What we should be doing in the House is protecting the creator by providing him or her with a way to make a living and at the same time protecting the ability of Canadians, often called consumers in the language of this debate, to enjoy the creative product of Canadian artists. Instead, the bill seems to privilege or enhance the economic and legal position of content owners, not creators and certainly not consumers, because the bill does nothing to deal with the most troublesome issue confronting us under the present copyright regime, which is the digital lock.

Behind that lock is the artist's work with limited ability to get out. On the other side is the consumer who is limited by his or her ability to access the creative product. We should be facilitating cultural and economic exchange between creators and consumers, not placing barriers between them that will benefit almost exclusively large foreign content owners. It is backward and it needs to be reworked.

On the same theme that I began with, the democratic possibilities of new technology, I would like to talk about the implications of this bill for education. Our new technologies carry with them this tremendous opportunity for providing greater access to education by making knowledge and information available to a much larger audience. This technology is an equalizer of educational opportunity, not by limiting opportunity for some but by raising it for all.

However, this bill, again primarily through the mechanism of the digital lock, places in front of students obstacles to their education. This is most obvious in the case of distance education. It should be noted that distance education or learning is an important issue, not just because of the sheer vastness of Canada but also because of the intensity with which so many of us live our lives and the convenience that distance education offers. It is also a huge issue because of the need for so many Canadians to pursue continuous education to keep up with new technologies and shifting labour market demands.

This bill would require that digital copies of educational materials for the purpose of study be made to self-destruct within five days. This would pose obvious problems for those pursuing long distance education, among others. In the case of long distance education, people in a remote isolated community would have to destroy their course materials within 30 days after the conclusion of the course of study. This is hardly an appropriate use of copyright law as these people would be effectively prohibited from having future access for reference or other purposes to content they have already paid for.

Further, with this bill, as presented, digital locks supersede other rights guaranteed in the Canadian Charter of Rights and Freedoms, such as changing format in the case of a perceptual disability. Again I would argue that this is hardly an appropriate use of copyright law.

Under the terms of this bill, any removal of digital lock information would come with punitive fines of up to $1 million and five years in jail. This measure is based directly on the United States' controversial digital millennium copyright act model.

In conclusion, I will point to some principles that should not change over time and should inform copyright legislation. One is that we need to value, treasure and protect the creative people among us. Their gifts are gifts for all of us and this needs to be recognized socially but, and very important, materially with appropriate remuneration for those in the arts and cultural community.

A second such principle is that education is critically important to us individually and collectively and, in all that we do, we should enhance access to education not limit it.

A third and very serious principle is the inviolable rights afforded to all Canadians by our Charter of Rights and Freedoms.

On all three of those principles, this bill fails and requires, as a result, significant amendment.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

We heard earlier, Madam Speaker, from a Conservative member of Parliament, a very intelligent person, who denied that what we all know to be in the bill was in the bill. I want to read page 23 of the bill, cproposed subsection 30.01(5), which states, “the student shall destroy the reproduction”, that is the textbook, “within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations”. That is black on white.

Very clearly, from the questions that we have been hearing from Conservatives, it appears that none of the Conservatives have actually even read the bill. This is quite tragic when they are supposed to be representing the interests of their constituents.

Could the member for Beaches—East York comment on the fact that the retroactive book burning is in the bill and on how surprised he may be that Conservatives have not bothered to read the legislation that is before the House?

[Matthew Kellway, NDP, Beaches—East York, ON]

Madam Speaker, it is in the bill and, as the member noted, I commented on it in my speech. I think it is an egregious part of the bill.

I may be a bit of a nerd but I have retained and actually found quite useful for my speech earlier today my notes and papers from my course work back in university. I know there are others in this caucus who have commented on having that same habit of retaining these materials for a long time and finding them from time to time quite useful.

For all students, being able to retain notes, course materials, et cetera, that they have paid for is a tremendous advantage and only right having taken the courses. We all know that education is not inexpensive these days.

The provision read by my colleague about having to destroy these notes is something that I would like to see removed in amendments in committee.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Madam Speaker, a lot of the conversation earlier centred around the issue of the iPod tax, as the government likes to call it. We like to call it essential revenues for many of our artists and musicians.

One of the situations that we had just prior to the last election dealt with that. A lot of the media put that out as being just a myth.

What ends up happening here is that there is a relinquishing of revenues as a result of technology change. One of the things that we wanted to do, as part of the Liberal Party, was to provide that funding through general revenues.

Is that something that the NDP would consider in light of the fact that we keep talking about this levy? Sometimes a debate gets misconstrued.

[Matthew Kellway, NDP, Beaches—East York, ON]

Madam Speaker, it is interesting that the levy has existed on other forms of technology that are now, in a sense, timed out, such as cassette tapes, et cetera.

We would certainly support moving that private copying levy onto new forms of technology so that we retain those levies for the benefit of arts and culture in Canada.

[Hélène Laverdière, NDP, Laurier—Sainte-Marie, QC]

Madam Speaker, I would like to thank the hon. member for another excellent speech today. He spoke very eloquently about the importance of creativity.

That said, the hon. member also spoke about economic issues. I would like to ask him if he feels that this bill is yet another example of how the Conservative government favours big business over small businesses. Artists are SMEs, small businesses.

[Matthew Kellway, NDP, Beaches—East York, ON]

Madam Speaker, it would seem to be that this is the case, that once again we have Canadian legislation mirroring or mimicking legislation in the United States. It seems that it would be foreign owned and content owners who benefit from this copyright law and Canadian artists, who benefit us all so much, would be left out in spite of their very keen economic needs.

[Dan Harris, NDP, Scarborough Southwest, ON]

Madam Speaker, I will take over my colleague's spot.

While I would like to commend the government for tabling legislation that seeks to bring about long overdue changes to bring Canada in line with advances in technology and current international standards--changes that New Democrats have been recommending since 2004, I might add--I cannot commend the bill in its current form, and will not, unless the government is willing to amend the digital lock provisions and restore royalty provisions for artists. The government has yet to create a copyright reform that would balance the rights of creators and the public. Rather, the legislation it has brought forward would satisfy the demands of large American content owners and trump the rights of Canadian consumers.

Canadians did not give the government a mandate to cater to the needs of already hugely profitable content owners while restricting the rights that consumers currently possess. They also did not elect it to waste time fixing problems that never existed in the first place. The government's own clause-by-clause analysis of the bill, obtained under the Access to Information Act, states that the digital lock provisions apply even when there is not an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions.

It is not hard to fathom why the government would not attempt to find balance in its legislation. We all know that nothing the government has done since May 2 has ever had anything to do with balance. In committee, witness after witness testified that while the bill brings to life some of the much-needed modernization of our outdated copyright laws, major flaws exist within these digital lock provisions. Witness after witness said these flaws could be fixed and that a balance could be found in the same way that many of our trading partners are achieving, including many European countries and now even the United States.

It is clear from everything the government has done since May 2 that the government is simply not interested in anything to do with balance. All of its actions and all of its legislation have been very obviously one-sided and, frankly, ideological. Nothing the government does has anything to do with consultation or with balance. One would think that it had a mandate from a majority of Canadians, but of course we all know that it has a mandate from fewer than 40% of Canadians. The majority of Canadians support neither the government nor its actions, yet the government has the arrogance to completely ignore the concerns of any Canadian who may question its rigid and inflexible agenda.

Ignoring the concerns and advice of witnesses testifying in committee comes as no surprise to anyone in and around this chamber.

Canadians need to know that the Conservative government is making a complete mockery of the time-honoured parliamentary committee process. Governments have used this process for many years to examine proposed legislation and to garner input and feedback from Canadians. This government does not want input and feedback from anyone with a different point of view.

Canadians need to know that this government wants to effectively shut down the committee process, and not just the committee looking at this bill, but most, if not all, committees. The government simply wants to act as a bully, forcing its narrow agenda on the Canadian public and on the majority of Canadians who did not, and do not, support its agenda.

What witnesses have told the government on the bill is that the provisions on digital locks will create problems, problems that do not exist now. They could have serious implications for many creators in the entertainment industry and also for students, who presumably, as has been demonstrated many times over, will have to destroy their notes after 30 days. This is insane. Frankly, it reminds me of Inspector Gadget and Mission Impossible, where notes self-destruct within 30 days.

It makes absolutely no sense that the government would adopt such restrictive digital lock rules, which have, by the way, been described as the most restrictive in the world. A more balanced approach is not only available but is being used with apparent success in most other jurisdictions. What is wrong with balance and flexibility? What is wrong with fairness? It seems those are rhetorical questions when dealing with this government, which knows nothing of the meaning of fairness, balance or flexibility.

It is clear to the majority of Canadians that digital locks as proposed in this legislation will have a devastating effect on our cultural community, a sector that currently contributes $85 billion a year to our economy and supports over 1.1 million jobs. These are very large and significant numbers, especially in the troubling economic times we are currently seeing. Representatives from this sector cannot simply be ignored, but the government is doing just that.

The Writers Guild of Canada told the government that digital locks might work for software. However, from my own background in technology, I would take a different point of view and remind the House that locks keep honest people out. There is a way around every single lock, and I think the hackers of the world have proven that point in their attacks on governments and industry. If a lock is there, somebody will find a way around it.

Also, according to the Writers Guild of Canada, digital locks

are likely to be selected against in the open market as they were with music. They are neither forward-looking nor in the consumers' or creators' best interests. Digital locks, at their best, would simply freeze current revenue streams for creators.

That is pretty clear advice.

The Canadian Internet Policy and Public Interest Clinic told the government that:

Overall, these digital lock provisions are some of the most restrictive in the world.

To achieve a fair balance between users and copyright owners, the government needs to fix the digital lock provisions before this bill passes into law.

I could go on quoting from the cultural community, which told the government that it had a problem with the bill and that the government needed to change the digital lock provisions. Did the government listen? No.

It is as if the government is operating in a cone of silence. I would like to say that it is time to get smart. While we may not be using shoe phones, all of our phones nowadays do have the ability to download and receive copyrighted information. The levies and provisions that existed in former forms of media should be advanced onto the new forms.

The government has to start listening to Canadians. Trying to fix the situation after the demise of a whole industry will simply be too late. I call on the government to go back to the drawing board, rework this legislation and protect our vital cultural industry and the jobs it provides. If not, let us do it in committee.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, I have emphasized in the past a very offensive aspect that I think would cause concern for many Canadians. If the bill were to pass, it would by law prohibit post-secondary students, who have paid for their education, from retaining the studies and reports that they have done, as the bill has that 30-day clause. I wonder if the member would like to provide some additional comment on that issue.

[Dan Harris, NDP, Scarborough Southwest, ON]

Madam Speaker, I would like to emphasize for the Conservatives that if they had actually read the bill, they might know that those provisions are in fact there. I think it is troubling that the parliamentary secretary did not know that this provision was in the bill. Conservatives just seem to be making it up as they go along.

Certainly with respect to the 5-day or 30-day provisions, it is inexcusable, given the tremendous cost and burden that students are facing to get their education, that they would not be able to retain that material and use it for years to come.

[Paul Calandra, Conservative, Parliamentary Secretary to the Minister of Canadian Heritage]

Madam Speaker, I listened intently. Could my hon. friend point out for me the sections in the bill that actually refer to requiring the class notes of students to be destroyed after 30 days?

Also, has the member read proposed subsection 30.01(5) of the act, which talks about 30 days for the taped version of the distance education course that the student watches? After 30 days, that is what cannot be kept. Nowhere does the bill suggest that students have to destroy or burn the class notes that they have created while watching a taped version. The assertion is absolutely ridiculous.

I would defer to the hon. member's scholarly knowledge of the bill if he could point out for me the sections of the bill that identify that students have to destroy their class notes. He mentioned that it is in the bill a number of times. I will sit and listen and wait for the hon. member's scholarly advice as to where those sections are in the bill.

[The Deputy Speaker, NDP, Denise Savoie]

Order, please. I would ask all hon. members to wait until they are recognized to make comments or to ask questions.

For response, the hon. member for Scarborough Southwest.

[Dan Harris, NDP, Scarborough Southwest, ON]

Madam Speaker, I would first refer the Parliamentary Secretary to the Minister of Canadian Heritage back to my hon. colleague from Burnaby—New Westminster in reference to proposed subsection 30.01(5), which states in part:

However, the student shall destroy the reproduction within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations.

Where did I say that they would have to destroy their class notes? Once again, the Conservatives are just making it up as they go along.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Madam Speaker, I have a question for my colleague.

SOCAN, the Society of Composers, Authors and Music Publishers of Canada, said it believes that Bill C-11 should be amended in order to facilitate access to creative content via new media and to ensure that creators are fairly compensated for the use of their creative content via new media.

How will artists be affected if this delicate balance is disturbed?