Madam Speaker, here we have another bill to modernize copyright, the same bill that was introduced by the industry minister on June 2, 2010. The short title of the bill is the Copyright Modernization Act, but I do not think this is the right title; it should have been called the digital lock act or the padlock act, based on what happened in the past.
It was about time that the government introduced, in legislation, the principles contained in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which Canada signed on December 22, 1997. Unfortunately, the Conservative government used this as an opportunity to include several provisions that undermine the foundation of copyright. The Copyright Act is the legal foundation that ensures that creations can be reproduced, presented and communicated to the public while guaranteeing proper compensation for their creators.
The people most overlooked by this digital lock legislation—which is being passed off as copyright legislation—are the creators. To weaken copyright by creating a series of exceptions that allow people to use creations without authorization or any financial compensation is tantamount to preventing a group of workers from earning a living from their trade. I will talk later about the financial repercussions of this bill's provisions on creators.
This bill also does away with collectives, a tool that artists created for themselves to facilitate access to their creations in full compliance with their rights. It also jeopardizes cultural industries by cutting off their supply of creations and by preventing them from developing markets that meet the needs of consumers while protecting their investments.
The bill contains over 40 new exceptions, most of which mean no compensation for creators, and this flies in the face of a fundamental principle, specifically, that as soon as a creation is used, there is no reason the creator should not be paid. It is simple; it is clear. That is the basis of copyright.
A royalty is not a tax. Since the start of this debate, the Conservatives have been trying to make the link between royalties and taxes. They are not the same thing. Every industry, to varying degrees, benefits from government assistance through investment, research and development tax credits, and also direct subsidies. Just look at the aerospace, agri-food and information technology industries, to name a few.
Cultural industries are no different. All these industries fiercely protect their intellectual property under the Patent Act, the Industrial Design Act, the Copyright Act or any other intellectual property protection legislation.
What ends up happening? Everyone, as taxpayers or consumers, pays for using the creations of these companies, whether we are talking about software, drugs or iPods, since royalties are included in the price of the product or the price of the software licence, for example.
What is wrong with paying royalties for using music, images, videos and books? The creators of that material are entitled to compensation, just as teachers are entitled to their salary and the mason who repairs the school wall is entitled to his pay.
It is not a tax; it is a royalty we pay to the copyright holder, as we do for many creators in a number of different fields. With all the new technology at our disposal, we have to stop thinking of ourselves simply as consumers of the creation of others. If we write a short story or a novel, compose a song or invent something, we would obviously like to receive fair payment for our creation, our work.
Creators are inventors. They have patents on their creations and are entitled to their fair share. That is why we have to “think different”, in the words of the famous Apple slogan. Let us hope this slogan inspires us to follow through.
I will quickly go over the provisions of this bill and the various exceptions discussed—there are about 40—which will deprive creators, artists, composers, musicians and photographers of the royalties to which they are entitled. I should also mention writers.
What is the significance of broadening the concept of fair dealing for the purpose of education, parody or satire? This will obviously go before the courts. They will have to define the scope of this section. In the meantime, uncertainty will persist and users, especially teachers, as well as copyright holders, will wonder about permitted uses. I already said in another presentation that, with the arrival of the majority Conservative government, with the building of new prisons, these Conservatives will invent new crimes to fill their prisons. There are several new crimes in this bill. We did not know they were crimes, but now we have punishments. Things we do on a daily basis will be criminalized and punished.
This provision affects monies collected by the Société québécoise de gestion collective des droits de reproduction—Copibec; the Society for Reproduction Rights of Authors, Composers and Publishers in Canada; and the Quebec Collective Society for the Rights of Makers of Sound and Video Recordings. All these organizations appeared before the committee, but the government did not use anything from their presentations. Instead, the government decided to borrow from provisions implemented in the United States. The Society of Composers, Authors and Music Publishers of Canada, or SOCAN, and the Société québécoise des auteurs dramatiques are also opposed to this provision, as are the Producers' Audiovisual Collective of Canada, Audio Ciné Films and Criterion Pictures when it comes to the reproduction of literary, artistic, dramatic, musical and audiovisual works, the public performance of musical and audiovisual works, and the presentation of dramatic works in educational institutions.
What about lost royalties in Quebec because of the broadening of the concept of fair dealing? In fact, what is fair dealing? The law does not specify what is meant by fair dealing. This will result in the loss of $11 million annually for creators and copyright owners. Every year schools, CEGEPs and universities make 175 million copies of excerpts from protected works.
Let us remember that fair dealing is a loose concept that will put an end to the right to grant or deny authorization to use a work and the right to receive remuneration for the use of a work, thus affecting the rights of 23,000 authors and 1,000 publishers in Quebec.
The Conservatives are opening Pandora's box. The education sector is very large. It does not make any sense. If people can photocopy books for educational purposes without providing compensation, no one will want to write books. Furthermore, since the term “education” is not defined in the bill, this new exception could apply to any sort of educational activity and not just to activities carried out within the school system.
Another exception is reproduction for private purposes. An individual may reproduce a legally obtained work on any medium or device and provide access for private purposes. The government could have chosen, as the artists and performers have requested, to expand the existing compensation system for transferring a sound recording to blank media such as cassettes, but it chose to make it free.
We know that, right now, when we make a copy of a work on a disk, royalties are paid to the creators—29¢ on each CD, for example. Obviously, with the growth in virtual storage methods, the revenue from royalties has disappeared like snow on a warm day, dropping from $27 million to $8 million in a few years. There is nothing in this bill to compensate for these losses.
Creators are dismayed to see, in a copyright bill, that the only thing the government is concerned about recognizing is not copyright, but digital locks. The number of blank cassettes and DVDs sold is declining steadily, the amounts redistributed to creators are falling, and creators’ associations are hoping that a similar royalty will be applied to the purchase of devices like personal stereos, as was said in committee, based on the size of the hard drive or flash memory. The existing private copying regime does not affect those devices, however; only the recording media. And fewer and fewer media are being used.
The use of photographs is another exception that has been criticized by photographic artists. An individual may use for private or non-commercial purposes, or permit the use of for those purposes, a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.
On the question of later viewing, an individual may reproduce a work that is being broadcast for the purpose of listening to or viewing it later. Only one copy may be made and the individual may not keep the recording any longer than is reasonably necessary in order to listen to or view it later.
To summarize, I make a copy of a recorded program that I have paid for in order to watch it later, but I would not be entitled to retain the copy any longer than is necessary for the later use. How can that be verified, and who is going to do it? Who is going to make sure that I do not keep the copy indefinitely or I do not lend it to my neighbours? If I lend it to my neighbour, is that going to be a crime liable to a $5,000 fine? If I look at the criminal provisions in the bill, that might well be the case. I would become a criminal if I lent a program to one of my friends. I think the penalty applied to this type of conduct is excessive in the circumstances.
With respect to backup copies, the owner of a work will be able to make backup copies and use them to replace an original work rendered unusable. Devices that can no longer be used will therefore have to be repurchased, but not the content.
There are some odd things in this bill. It is difficult to make head or tail of it.
With respect to communication of a work by telecommunication, educational institutions will be able to communicate lessons containing copyrighted works to students by telecommunication. The institution will have to take measures "that can reasonably be expected" to limit the distribution of the work and will also have to destroy the copy within 30 days of the date on which the students receive their final evaluations. However, no penalties are proposed if the institution fails to take the necessary measures.
This provision suffers from a somewhat split personality. It is sending the message that these works must be destroyed but there is no arrangement for verifying this. In any event, if it is not destroyed, that is no penalty. I wonder what we are talking about. I would really like to know what firm of lobbyists went to see the Conservative government and asked it to include this kind of provision in the bill. I do not understand.
For extension of the photocopy licence, institutions that have been issued a photocopying licence by Copibec will be able to make digital copies and communicate them to students by telecommunication. The photocopying licence’s provisions will apply to that type of use, and the royalties will be calculated the same way. How will fair dealing for educational purposes be reconciled with this exception?
Institutions in possession of a photocopying or reprographic licence will also be able to make digital reproductions and transmit them by telecommunication. Paid-for photocopies could thus be transmitted by way of digital reproduction, however they get somewhat lost in the maze that is the digital world.
Teaching institutions will be able to access works available on the Internet for educational purposes. We all do this: we use Google, we consult Wikipedia, etc. This exception would not apply to works protected by a technical measure—a lock—or to works displaying not simply the copyright symbol but also a clearly visible warning prohibiting their use. Thus, the principle whereby works are protected as soon as they exist in some medium, without the need for any other formality is reversed, and rights holders who do not wish to provide free access to their works would be forced to lock them or attach a warning. This fails to take into account the millions of works already available free of charge for educational purposes on the Internet under the current licensing system.
As far as reproduction for visual presentations and examinations is concerned, the current legislation permits the reproduction of a work by hand and its presentation by means of an overhead projector. The bill will authorize the reproduction and visual presentation of a work on all platforms irrespective of the type of technology, be it a USB key, an interactive whiteboard, or a computer screen. This exception will not apply if the work is available on the Canadian market in the medium in question. The legislator has removed the possibility of obtaining a licence from a collective society in order to stop the use of this exception. This amounts to an immediate loss of half a million dollars to the copyright holders represented by Copibec.
This is another example of a provision in this bill that does not assist authors but rather deprives them of up to $500,000 in income.
We spoke earlier of provisions in the bill that apply to libraries, museums and archives. Let us see how this applies in the case of loans to institutions. Libraries, museums and archives designated as such under the act will henceforth be able to transmit digitally formatted articles from periodicals to users for private study and research purposes. These institutions must take steps to prevent the user from printing more than one copy of the article or from transmitting it to a third party.
Librarians who forward articles to users must take steps to ensure that these users are not able to transmit this information to a third party. As I cast my mind to my municipal library in St-Hippolyte, I wonder who will have to handle the directives this legislation entails. How will that person proceed?
In the culture sector, the general feeling about Bill C-11 is that, in its current form, it undermines the principles at the heart of copyright, principles that have historically provided an environment that is favourable to creators, producers, distributors and consumers of cultural property. This bill will compromise Canada's ability to compete in a global digital economy and will undermine the economic future of those creating Canadian content. Artists indicate that numerous clauses in Bill C-11 demonstrate a lack of understanding of the creative industry's structures within an evolving technological environment. Parliamentarians have a responsibility to amend the bill and keep the positive measures. In order to develop an innovative knowledge economy, Canada needs to staunchly defend intellectual property.
If Bill C-11 is passed in its current form, there will be serious financial consequences for artists, for Canada's cultural industries, with losses estimated at $126 million per year.
We should be removing all of the clauses that go against the current law and eliminate the revenue currently being generated. This includes the provisions that legalize certain kinds of copying, without providing any compensation. We must allow the educational use of copyrighted material without compensation.
It seems as though all of the attempts at copyright reform in Canada have had very little to do with creating a system that balances the rights of creators with those of the general public. That is what the NDP wants. We do not want to further criminalize the actions of individuals. We want this bill to clearly set out copyright guidelines for creators, to help them enter into a growing, evolving universe.
