HERI Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Thursday, March 25, 2004

¿

0910

The Chair (Ms. Sarmite Bulte (Parkdale—High Park, Lib.))

Ms. Susan Peterson (Assistant Deputy Minister, Cutural Affairs, Department of Canadian Heritage)

¿

0915

¿

0920

The Chair

Mr. Gary Schellenberger (Perth—Middlesex, CPC)

The Chair

Ms. Christiane Gagnon (Québec, BQ)

¿

0925

Mr. Bruce Stockfish (Director General, Copyright Policy, Department of Canadian Heritage)

The Chair

Mr. Bruce Stockfish

¿

0930

¿

0935

Ms. Susan Bincoletto (Director, Intellectual Property Policy, Department of Industry)

¿

0940

The Chair

Ms. Christiane Gagnon

¿

0945

Mr. Bruce Stockfish

Ms. Danielle Bouvet (Director, Legislative and International Projects, Copyright Policy Branch, Department of Canadian Heritage)

Ms. Christiane Gagnon

The Chair

Ms. Wendy Lill (Dartmouth, NDP)

¿

0950

Ms. Susan Peterson

Mr. Bruce Stockfish

¿

0955

Ms. Susan Bincoletto

The Chair

Mr. Albert Cloutier (Senior Project Leader, Department of Industry)

À

1000

The Chair

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)

The Chair

Ms. Susan Peterson

À

1005

The Chair

Mr. Bruce Stockfish

The Chair

Hon. Paul Bonwick (Simcoe—Grey, Lib.)

À

1010

Ms. Susan Peterson

Hon. Paul Bonwick

À

1015

Ms. Susan Peterson

Hon. Paul Bonwick

The Chair

Ms. Susan Peterson

Hon. Paul Bonwick

The Chair

Ms. Susan Peterson

The Chair

Ms. Christiane Gagnon

À

1020

Ms. Susan Bincoletto

Ms. Christiane Gagnon

Mr. Bruce Stockfish

Ms. Christiane Gagnon

The Chair

Ms. Carole-Marie Allard (Laval East, Lib.)

À

1025

Ms. Susan Bincoletto

Ms. Carole-Marie Allard

Ms. Susan Bincoletto

Ms. Carole-Marie Allard

Ms. Susan Bincoletto

Ms. Carole-Marie Allard

Ms. Christiane Gagnon

Ms. Carole-Marie Allard

The Chair

À

1030

Mr. Clifford Lincoln

Ms. Susan Peterson

À

1035

Mr. Clifford Lincoln

Ms. Carole-Marie Allard

Ms. Susan Peterson

Mr. Clifford Lincoln

The Chair

Mr. Bruce Stockfish

À

1040

Mr. Clifford Lincoln

Mr. Bruce Stockfish

The Chair

Hon. Paul Bonwick

The Chair

Ms. Wendy Lill

The Chair

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CANADA

Standing Committee on Canadian Heritage

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NUMBER 004

l

3rd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, March 25, 2004

[Recorded by Electronic Apparatus]

¿  (0910)  

[English]

    The Chair (Ms. Sarmite Bulte (Parkdale—High Park, Lib.)): Good morning, ladies and gentlemen. I'd like to call the meeting to order.

    We're delighted to have with us today officials from both the Department of Canadian Heritage and the Department of Industry to provide the committee with a government status report on the Copyright Act.

    We're delighted that you were able to join us, certainly following up from when the minister appeared before us. Approximately two weeks ago she did indicate her intention to have the officials come before us and table the status report. I understand this morning we received the written status report on copyright reform, and we'd like to thank you for that.

    To other committee members, it was not until this morning that we were able to get a copy of this report, as I understand both ministers had to sign off on it.

    Ms. Peterson, welcome. Will you be speaking on behalf of...?

    Ms. Susan Peterson (Assistant Deputy Minister, Cutural Affairs, Department of Canadian Heritage): I will start, but first I'd like to introduce the people who are here with me. From the Department of Canadian Heritage, Bruce Stockfish is the director general of copyright policy, and Danielle Bouvet is the director of copyright policy. From Industry Canada, Susan Bincoletto is the director of intellectual property policy, and Albert Cloutier is the senior project leader.

    I have some introductory remarks I'd like to make, Madam Chair, and then any of us are available to take questions from the committee members. We're certainly delighted to have this early opportunity to address the committee this morning and to get the report to you, albeit just under the wire. This is conveyed with a letter from Madam Scherrer, answering some of the questions you posed when she met with you two weeks ago and delivering the report on behalf of both her and Madam Robillard.

    For the new members of this committee in particular, I'd like to take a couple of minutes to set this status report in context. As you know, copyright reform has been going on for a long time in stages, and it will go on, there's no doubt about that. The goal always remains the same, however, and that is to protect the interests of creators and other copyright holders while obviously allowing legitimate access to their works by those who wish to use them. This requires constant and ongoing attention, because technology keeps advancing, sometimes at a really astounding pace.

    Phase one of copyright reform was completed in 1988. That reform addressed, among other things, copyright protection in computer programs and expanded moral rights. It encouraged the collective administration of copyright and replaced the Copyright Appeal Board with the Copyright Board. During the nineties, many other amendments were made to comply with obligations such as NAFTA and the World Trade Organization.

    Phase two was completed in 1997. This addressed issues such as an expansion of neighbouring rights; the introduction of a private copying remuneration scheme, as you've heard testimony on; new copyright enforcement mechanisms; new protections against the parallel importation of books; and some exceptions for educators and persons with perceptual disabilities. These changes allowed Canada at that time to ratify their own convention.

    After the phase two reforms, the departments took a deep breath and we started again. Why? Because the WIPO treaties were signed in 1997, and among the provisions in phase two was a new requirement put into the act that required government to table a report on the workings of that new act within five years. That requirement to review the act, along with the signing of the WIPO treaties, put us on a new path of research and consultation. I can give you some brief highlights.

    In June 2001 the government released a framework paper for copyright reform along with two consultation documents on digital copyright issues. One of these documents dealt with the retransmission of broadcast signals over the Internet, which resulted in a bill that this committee handled. The other document served as the basis for consultation on three issues related to the WIPO treaties, and they are among the ones that this status report reports on.

    The departments held cross-country consultations on these issues in 2002. This certainly revealed that the issues were not easy ones--Mr. Lincoln alluded to this a couple of weeks ago--that there were in fact many different points of view, and that there were other issues as well that should be dealt with in the short term. So that's what we found out during those cross-country consultations.

    We also produced a number of studies during this time. To cite one, Canadian Heritage commissioned a three-part study on technological protection measures--it sounds simple but it's not--for a very comprehensive review of all aspects of this issue. We also organized a working group to look at the issue of educational access to the Internet, which is, again, a very difficult issue.

    Moving right along here, the next step was the preparation of the section 92 report tabled in Parliament in October 2002. This committee began its review of that report last fall. As many of you know, this report represents an overview of the issues to be dealt with in ongoing copyright reform and a timetable. It divides those issues into short-term issues, medium-term issues, and longer-term issues. Our work on that section 92 report, our consultations relating to the digital issues, and our monitoring of developments in other countries have now come together in the status report that has been tabled with you today.

¿  (0915)  

    As for the report itself, I would like to start by saying what it is not. The status report is not a white paper. It does not set out firm policy positions that the government intends to pursue. Rather, it is a report that outlines approaches to the group of short-term issues, approaches that are being considered by the Department of Canadian Heritage and the Department of Industry. In some cases, you will see that a number of approaches are cited to give you a sense of the range of issues and approaches that the two departments are dealing with.

    Our ministers would clearly welcome further input from this committee and from stakeholders, hopefully through this committee. We very much hope that when you do hear from stakeholders you will really engage them on these issues. The reality is that they have proven to be tough issues in other jurisdictions that have considered them. It's interesting to me, who was new to this field, that it was tough at the level of the European Union, who put out a directive, and then it was tough in France, Germany, Finland, Belgium, Great Britain, Australia, and New Zealand to come to grips with these issues and move ahead.

    These short-term issues include all the issues that we know are required to ratify the WIPO treaties. This is the track the government is on. That is the government's objective. We must ensure, frankly, that our laws do everything responsible to ensure that the new digital world in which we now live does not rob creators and other copyright holders of their talents and of their just rewards. The loss to them, we believe, would be a loss to all Canadians.

    As you know, the technological environment in which copyright operates is changing very rapidly. Digital compression protocols such as MP3, coupled with widespread high-speed connections and vastly superior computer processing power, have turned into reality what until very recently was simply just seen as science fiction. File sharing of music and videos has become widespread. The problem is that a lot of this file sharing is copyrighted material and is circulating without any authorization from rights owners, as you know.

    New technology is making this possible, and that's the reason it's the focus of our attention. But I want to be clear that the government is clearly not trying to stifle innovation--that would be impossible--and it's clearly not trying to slow down progress. What the government is trying to do is find a balance that embraces that innovation within an environment where creators can feel reasonably confident that their works will not be reproduced and not be communicated in a way that undermines the incentives for creation and diffusion. Creators, after all, want to create, and they want their works to reach the public, so we have to always find that balance.

    I'll say just a brief word about private copying. I read the testimony of Richard Pfohl, who appeared before you on March 11, 2004, representing the Canadian Recording Industry Association. As you know, Canada's private copying regime allows individuals to make copies of works for private use without violating copyright. In return, a levy is imposed on the blank media, the blank recording media, used for that purpose. The levy is set by the Copyright Board after it's heard from interested parties. The proceeds of that levy are paid out to both Canadian and foreign authors, but in the case of performers and producers, they are paid only to Canadians. Mr. Pfohl makes the case that this regime is in conformity with WIPO requirements.

    Frankly, I wish the matter were as clear as that, because then the government's course to ratification of the WIPO treaties would be a clearer and perhaps shorter one. But let me suggest that the mattter is not as clear as we might all wish. We're still working on this. It's not as if we have the answer. We don't. But the fact is that, contrary to what Mr. Pfohl has suggested, not all experts agree, and the issue is not confined to who is entitled to the proceeds from the levy, the so-called national treatment issue.

    There are also differences of opinion among experts on the scope of the obligations in the WIPO treaties. Mr. Pfohl certainly cited one expert, but there are others with different views. I could give you their names, if you wish. The fact of the matter is that we have to give consideration to the range of these views among the experts, and we're not there yet. We're working on this.

¿  (0920)  

    The fact that this matter is not as clear as we would wish it to be right now leads us to ask ourselves another question, a question that we think is a responsible one--namely, what if Canada moves speedily to update the law, to deal with all the short-term issues, including all those needed to implement the WIPO treaties, but found itself for the time being, because of the private copying issue, unable to take the final step of ratification? Would that seriously disadvantage Canada's copyright holders?

    Mr. Pfohl thinks the answer is definitively yes, but frankly, we question that. We therefore have asked CRIA and Mr. Pfohl to meet with us to explore that key question more fully. We are doing the responsible thing by asking that question and working toward what we think is an answer to that.

    We are certainly determined to move forward to make sure that the government, by updating its laws, is serving rights holders in a manner that recognizes not only what are really the wonderful opportunities presented by the digital environment but also the challenges presented to copyright.

    Thank you.

    The Chair: Thank you, Ms. Peterson.

    We will move to questions now, starting with Mr. Schellenberger.

    Mr. Gary Schellenberger (Perth—Middlesex, CPC): I'm going to pass on the first question.

[Translation]

    The Chair: Do you have a question, Ms. Gagnon?

    Ms. Christiane Gagnon (Québec, BQ): It's a little disappointing when a committee is given a report in this way. We have not had the time to fully examine all of the ins and outs, or to properly grasp what you have told us. What I mean is that, as members, it would have been nice to have it at least one day in advance, 24 hours earlier, so that we could properly understand what is involved.

    I have a question for you, but I am not sure if this touches upon one of the points that you raised this morning. There is one group, AMICO, that appears to be very concerned, and says that we should go further and allow for exceptions, which could have a negative effect on copyright protection.

    Do you think we should worry about any approach which would alleviate the need to go the distance in ratifying the WIPO treaties on the equitable use of works in institutions of learning? Is there any reason for them to worry about what you have stated in your brief?

¿  (0925)  

    Mr. Bruce Stockfish (Director General, Copyright Policy, Department of Canadian Heritage): If I may say so, Ms. Gagnon, we are constantly seeking to balance the rights of the copyright holders and the users; that is always our objective when it comes to copyright. In fact, it is the copyright policy. And that is, of course, our objective, with the proposals and approaches that are found in this interim document.

    If I may, Madam Chair, I can give you a brief outline of our paper including an idea of the type of approach that we are discussing for each of these issues.

[English]

    The Chair: I believe that would be very helpful, and I see the committee agrees. Please go ahead, Mr. Stockfish.

    Mr. Bruce Stockfish: As Ms. Peterson indicated, the report was tabled only today, so you won't have had a chance to look at it, but this will be an opportunity for us to give you a general overview.

    It's not a set of positions. These aren't final policy positions; that is what cabinet will decide on when we make recommendations to cabinet. They're not a wide-ranging set of options, either. We've done a lot of work over the past couple of years and we've managed to advance those options to the point where there is commonality in the approaches that we're suggesting. Nevertheless, it will be seen that there is still work to be done as well.

    I'll just make some general comments, then, to guide you as you look at this report, and of course we'll be happy to take any specific questions.

    The report itself follows the structure of the short-term group of issues that was set out in the section 92 report. I would encourage members to look at the section 92 report in conjunction with this document. It will help in understanding the issues. The issues are grouped according to the 12 or so issues in the short-term group.

    The first subgroup, if you will, is the WIPO treaties issues, all issues that were necessary to put us in a position to ratify the WIPO treaty.

    The second group is the issues dealing with photography. One of the photography issues, the term of protection for photographs, relates to the WIPO treaties as well. There are two related ownership issues that we will be dealing with as well.

    A third group, or major issue, is liability of Internet service providers. That was one of the issues that we consulted on a couple of years ago, in addition to three of the key WIPO treaties issues. That is being considered as well.

    Finally, there are three access issues relating to educational institutions and libraries.

    Let me break it down a little bit more. The three main issues for the WIPO treaties that we did in fact consult on in 2002, which were the subject of a consultation paper that was distributed in 2001 and which we talked to this committee previously on, are set out in the paper. Those three issues are the making available rights; the new right to address this new form of communication by the Internet that would give a new right for rights holders; technological protection measures to give them the legal protections they need with regard to encryption and other technology; and also protection for rights management information, another tool that rights holders use to protect their works.

    With regard to the making available right, only the precise means by which we will introduce such a right is still being considered. The departmental officials agree that a right will be introduced. It's just a question of the precise means by which we do that.

    On the two other provisions, technological protection measures, or TMI, and rights management information, or RMI, we have given special consideration to ensuring access for works to legitimate users, but the departments agree with regard to the particular approach that's been put before you now.

    These are the three key provisions that rights holders are seeking in the WIPO treaties. There are others.

[Translation]

    One of the two WIPO treaties states that member countries must grant protection for photographs for 50 years following the death of the author. In order to abide by this provision, we decided to tackle the issue of "ownership" of photographic works, so as to clarify who is the author of these works; one related issue involved defining the author of a work that is commissioned. The approach that we recommend would be to consider that the photographer is the author, but in the case of commissioned works, we feel that there should be provisions to protect the privacy of the people who appear in these photos.

[English]

    So with the group of issues for photographs, there is agreement, but there is still a question of how we deal with issues of protection of privacy for commissioners of photographs.

    In order to comply with WIPO treaties, there are other amendments dealing with a number of other issues that are set out. These are the distribution rights, moral rights for performers, reproduction rights of performers, term of protection for sound recording producers and performers. In each case, there is an approach set out that would enable the government to implement those obligations. There are still some collateral considerations that are set out in the report, and the departments will continue to work on those, but there is an agreed approach as to how to address these issues.

¿  (0930)  

    Another important issue that is central to our ability to ratify the WIPO treaties, as Mr. Peterson mentioned, is the matter of the impact of ratification and the current private copying regime. WPPT is one of the two WIPO treaties and contains the provision requiring national treatment. This is the treatment of nationals of other member countries in a manner that is no worse than the treatment of one's own nationals. It also contains a provision requiring that any exception be consistent with certain specific standards, for example, not interfering with the normal exploitation of the performance of a work. These are the international standards to which any exception in domestic legislation must conform.

    As Mr. Peterson indicated, policy analysis is underway. We are looking at all aspects of this issue, with a view to consulting later this year.

    Private copying itself is a medium-term issue. We are looking at all aspects for the medium term. The question of the impact on ratification is something that the departments continue to look at now, with a view to putting ourselves in position to ratify.

    The final four issues I mentioned are not strictly required in order to comply with the WIPO treaties. These pertain to ISP liability and the three access issues I mentioned. On ISP liability, there currently exists an informal agreement between ISPs and rights holders, whereby upon notification that infringement is occurring on ISP networks, ISPs notify the infringing parties and suggest that any infringing material be removed. The issue is whether or not ISPs require greater legal certainty, either to exempt them from liability or to confirm the conditions in which they will be liable.

    This issue is related to current court proceedings. The Canadian Recording Industry Association is requesting from ISPs the identity of certain ISP clients who are alleged to have infringed copyright. This is an example of the kind of liability the rights holders would like on the part of ISPs. On the other hand, ISPs seek to have their potential liability limited. The document sets out two possible approaches as to how we can clarify the potential liability for ISPs.

[Translation]

    The other issues relating to access are in three parts. First would be the use of the Internet for educational purposes. Students are often asked to use the Internet to find content for their school projects, that are either submitted to their teacher or put on the school's website. In most cases, the students do not ask the authors of the works for permission to use what they have found on the Internet. The two approaches that we are suggesting recognize that some content is made available without expectation of payment.

    However, in one case, in order to have easy access to content, it will be necessary to have a general application licence. This application can be of two types: a compulsory licence, whereby rights holders would have to make the works available in return for a royalty to be paid by the schools; or an extended licence whereby a management company would seek the status of a corporation to represent all of the rights holders. That is one approach to licensing.

    Educational institutions represented by the Copyright Consortium of the Council of Ministers of Education, Canada, which represents all of the provinces and territories except Quebec, are seeking an exception in the act that would allow for this type of activity to occur without triggering a copyright violation. The two approaches are detailed in the interim document.

¿  (0935)  

[English]

    The final two access issues deal with technology-enhanced learning and inter-library loans.

    Technology-enhanced learning refers to the new tools that are used in educational institutions to enrich the learning experience and reach students who may be in remote settings. Because of these tools, certain uses have the potential to trigger certain rights, even where the activity is ancillary to other core activities. So it's a question of extending the educational institution's ability to use existing rights and exceptions under the Copyright Act to take advantage of new technological tools to reach students in remote locations.

    One way of doing this is to create an exception for such activities. An alternative approach is a licensing one that would embody a monitoring of the rights holder's ability to respond to this new technical environment. Those two approaches are set out in the document.

    Finally, the departments are also considering whether to adapt current exceptions for libraries, archives, and museums to the digital environment. One concern is that once the scholarly publications are distributed online, it may be impossible to control the extent of online distribution, thereby undermining the publishing sector's rights.

    One possible approach is to amend the act to extend existing exceptions to the electronic delivery of copyright material to library patrons, provided there are adequate technical safeguards to prevent their unauthorized distribution beyond that. An alternative approach consists of encouraging licensing of the electronic delivery of copyright material to library patrons. That would permit rights holders themselves to assess whether sufficient safeguards were in place.

    This is a broad overview of the issues in play. You'll see that in some cases one approach is being considered now; in other cases more than one approach is being considered. We welcome the committee's views, and ultimately the stakeholders' views, as we proceed to finalize these positions in the coming weeks in order to be ready to go to cabinet later this year to seek authorization for a bill.

    It is the objective of the departments to address all these issues, whether by way of legislative amendment or otherwise. But this is the entire first group of issues that we intend to develop positions on and address in a timely way.

    Those are my opening remarks. Obviously, I'm open to questions. My colleague Madam Bincoletto may wish to add to this.

[Translation]

    Ms. Susan Bincoletto (Director, Intellectual Property Policy, Department of Industry): Thank you, Bruce.

    Bruce has given you a good overview of the work that we have done over the past two weeks to prepare this report for you. Of course, we must be careful, since even though the ministers agreed to allow us to table this report, we have not yet been given the go-ahead to make specific recommendations. These, therefore, are not our final positions.

    That said, this is an indication of a number of things. It shows that we are willing to update the act, which involves a number of aspects, the first one being to increase rights, certain rights for rights holders who are in need of this because of today's challenges, particularly in the digital context.

    I would like to deal with that for a minute so that the committee will understand how wide-ranging these rights can be in the current Copyright Act. The act does not only apply to the analogue world, but also to the digital universe. Whether one is a creator, an artist, a record or other type of producer, the fundamental rights in the act, the rights of reproduction and communication, apply to both the analog as well as the digital environment. Rights holders can currently exercise these rights. This is evidenced by business models that are based on a degree of protection and are available on the Internet.

    The same applies to concerns about piracy, and the downloading of music that is considered illegal. I know that the Canadian Recording Industry Association has gone to court to try to limit this activity. This must be recognized because the act does have some teeth as it now stands. We are trying to add some instruments to it, some elements that would allow for a greater control by those who want more certainty when operating in a digital world. These are the rights that Bruce was referring to, including the right to make available or legal protection for technical protection measures, which would prevent people from finding a way around these measures. This is both important and necessary.

    We are very much aware of this and we are doing our outmost to try and find a solution to the problem.

    At the same time, the Internet presents other challenges, the intermediaries. Internet service providers have a role to play in providing information, content, whether or not it is protected by copyright. Last fall, you heard from Canada Post, who is involved. Someone provides the content, they deliver it, and someone else uses it. What is their role? What role should they play when they don't necessarily have any control over the content? It is important for us to examine this, and we are aware that our trade partners have given these matters some consideration while examining issues relating to the WIPO treaties.

    That is also dealt with in the report. I believe we are in perfect harmony when it comes to finding solutions. The approaches might differ since the issue involves a number of rights holders, a number of stakeholders, users, and the intermediaries themselves, but they are all intent on finding a solution.

    The third element involves access. Once again, in updating the act, it is important that we not lose sight of the balance we are seeking. And I am raising this because Ms. Gagnon spoke of equitable use.

¿  (0940)  

    Equitable use is a concept that exists throughout the world and it is important to the extent that it supports the basis of the Copyright Act, which involves the protection of creative content, while promoting its distribution.

    When it comes to education in particular—and this was mentioned recently in the federal budget—what is called lifelong learning is still extremely important. That is the context in which we want to draft the rules to make it easier for the act to adapt to this new reality.

    In closing, since I have the feeling that I have gone on too long, I would say that in that context, there are activities that contravene the current Copyright Act, things that teachers and students do every day, and we want to find a solution to this problem. How do we regulate it? Everyone seems to have a different idea on how to approach this. But I feel that what is done in our education system should be legal.

    Thank you.

[English]

    The Chair: Thank you very much.

    Madam Gagnon.

[Translation]

    Ms. Christiane Gagnon: When he was here, Mr. Pfohl said that private copying seemed to be one of the most important issues. Can you tell me what the problem is with private copying in the WIPO ratification process? He thought that might be the stumbling block, but we don't know because we were awaiting the recommendations from the consultation. But he did give us a hint. Do you think that is the main issue?

¿  (0945)  

    Mr. Bruce Stockfish: We can explain the problem as it relates to private recording.

    Danielle.

    Ms. Danielle Bouvet (Director, Legislative and International Projects, Copyright Policy Branch, Department of Canadian Heritage): In answer to your question on private recording, we should perhaps begin by explain the act, which created an exception to allow consumers to make their own private recordings. Along with this exception comes a compensation that is granted to three groups of rights holders, authors worldwide, essentially, as well as Canadian producers and artists.

    There are two types of issues that are of concern to us. First, we must determine whether the exception that we have created in our private copy scheme satisfies the requirements of our international obligations, more specifically clause 16 of the treaty involving producers and artists. That is one of the first things that we must look at.

    Second, we must also deal with national treatment. This provision is in clause 4 of the same treaty. As Ms. Peterson said, a number of experts have spoken out on this issue, and much has been written about it. For some time now, the two departments, as well as the Department of Justice, have been going over various scenarios, and taking a very close look at our obligations. We have also attended symposia, and have had serious discussions, even at the international level, in order to measure the extent of these concerns. These issues are being reviewed by all of the countries that allow private copies to be made. We are not the only ones interested in this.

    Some countries, like Belgium and Germany, decided to start by examining the scope of the exception. Germany, for example, decided to ensure that copies cannot be made from copies that are themselves obviously illegal. They decided to tackle that issue first, and last fall, they made some legislative progress in that area. They will have a closer look at issues relating to their own obligations in a second phase.

    In Canada, the entire issue is being examined as a whole. The Copyright Board last December issued a ruling that sent us in a direction which, for example, caused the CPCC, the Canadian Private Copying Collective, representing all of the rights holders for the purposes of private copying, to ask for a regulation by the governor in council that would exclude the hard disk. Why do they want the hard disk to be excluded? It's because they think it would solve the problem relating to the illegitimate source of copies that are made through private copying.

    As you can see, this involves a large number of issues for the government to examine. That is what we mean by an ongoing analysis, and we hope that all of the work will be done soon, so that we might be able to give interested parties a better indication of where we stand as quickly as possible. Once that is done, the final decision will be up to the government.

    Ms. Christiane Gagnon: Thank you.

[English]

    The Chair: Madam Lill.

    Ms. Wendy Lill (Dartmouth, NDP): Thank you very much for coming in today. I know that you know we're struggling with this issue, and it's one that is critical to the whole cultural protection regime we have in the country.

    I just have a couple of sort of surface questions, in a sense. One comment is that I'm happy to hear that you're going to be meeting with CRIA. Maybe something that's happened here has allowed that meeting to happen. I'm not sure. Maybe some of his comments felt controversial enough that we're actually getting some people back to the table. I'm not sure. I hope this meeting will help to focus our efforts and move it ahead.

    As all MPs around this table, we are constantly being told that there are very different issues that have to be addressed. We have to address the issues of educational usage and we have to address the issues of creators, and they seem to be at odds. I've said at different points that I find it's ironic that educational institutions, which I believe are very much all about learning and creating, would find themselves in that position, that they're at odds with the creators. But that's the way it is.

    I wish I had some hard data on who is bearing the cost. In some very basic exchanges, I think we lack a sense of what the costs are that are not.... For example, one of the costs is the two different approaches you're putting forward with regard to Internet material for educational purposes. You put forward the two approaches: amending the definition of “fair dealing”, which would expand the scope to encompass teaching and study by educational institutions using such material; and you talk about amending the act to provide a blanket licence. So there are two models. Is it possible to break down the costs of these two approaches? In each approach, who is bearing the particular costs?

    I guess we have the rights management system, the access CANCOPY model, which many people and many organizations tell us works very well, and then we have the educational institutions, which find that model works against their learning moments and against their ability to actually get the material to their students.

    I'm still at a loss, quite frankly, in trying to figure out which way to advise you on these two approaches, because I just don't have any nuts and bolts on that.

¿  (0950)  

    Ms. Susan Peterson: Well, it certainly is an excellent example of how one wishes one could simultaneously serve both objectives without having to in any way trade off one against the other.

    As to the actual costs of a winners and losers kind of issue, or actual costs, could you comment on that, Bruce?

    Mr. Bruce Stockfish: Economic analysis is a part of all the policy analysis that we do, with regard to all issues, in assessing what the impact would be on both the creator side and the user side. The objective, of course, is to again find the right balance in terms of the overall public interest. We don't have anything precise with regard to these two options now. It's something that we're continuing to explore.

    The educational use of the Internet issue is a good example—Susan is right—to show how there are different approaches to resolving copyright issues that would address the overall public interest. The starting point, of course, in the Copyright Act, is the exclusive rights that have been given to creators. It's a form, I suppose, of market intervention. The rights that have been accorded to creators are part of the marketplace. It has left copyright holders to apply those rights and to exploit those rights.

    At least that's the philosophy in searching for that public interest. It's only when the market doesn't work, when it's impossible for rights holders to apply their licensing abilities, that we talk about an exception approach, again with a view to meeting the overall public interest.

    Obviously, the interests of schools to make use of new technology, and distance education, using all of the Internet in a way that doesn't violate copyright, is a concern. The way in which the issue still manifests itself now is whether rights holders currently have all the tools they need in the Copyright Act to apply their rights to license, and whether it's a matter of adjusting those tools so that they can do it.

    There are possible tools for this. We mention two in the report; possible statutory licence, a compulsory licence, and possible extended licence or, barring that, whether an exception is appropriate. There's so much on the Internet now that schools and others, frankly, wish to use that it may be necessary to consider other ways to ensure that schools, students, and teachers don't violate copyright when they pursue their very legitimate educational activities.

    All of these factors are taken into account. Yes, we look at the economic impact, both on the creator side, what they stand to gain in terms of controlling their work and possible revenues from that, and also on the educational side, the ability of schools to make use of these new tools. This is part of the balancing approach that we take into account.

    I don't know if Susan has anything to add.

¿  (0955)  

    Ms. Susan Bincoletto: Yes. I would like to add a few words. Then, if you wish, Albert can explain a little bit more on how one of the two approaches could work. Again, it is preliminary because there are still a lot of questions that need to be answered.

    As a way of introduction, the information that is contained on the Internet today, I think, is very different from information in the analog world.

    When you're an author and you have a book, you go to a publisher and you expect people to buy your book. You want to make money out of it. A lot of people put in information, which frankly fits into “original and creative”. It is copyright protected, with no expectation to be remunerated. It's there because they want people to share ideas.

    The model is not always exactly the same. People may wish to have chat rooms. If they write something original, it is copyright protected. Should it then be subject to the Copyright Act in the same way as something of a commercial nature in a book, where if you make a copy of the book, you're taking away the ability to make money?

    It is in that context that we are still struggling to determine—that's why we had the working group with rights holders and educators—whether we agree with the principle that some things on the Internet are free. Yes, they are. The rights holders do not necessarily want to exercise their rights, because they want to put the information there in order to exchange ideas. That's almost the principle of fair dealing. You want to exchange ideas. Users become creators, creators become users, and it's a free flow.

    It is the idea of “parking” that aspect of it, so that we can focus on whether the Internet is really the new place to deliver content in a way that is of commercial value. How do we differentiate between the two? How do we make sure that when rights owners want to control their information and want to be remunerated, they can be remunerated?

    Maybe Albert wants to add something.

    The Chair: Very quickly, please.

    Mr. Albert Cloutier (Senior Project Leader, Department of Industry): As you've described the approaches, you've said fair dealing on the one hand and licensing approach on the other. In effect, both approaches are really founded on licensing. In the first approach, however, the expansion of the notion of fair dealing to schools and things would basically cover very limited uses that ultimately have to be fair and not prejudicial to the rights holder. Beyond that, we get into the distinctions between the various kinds of material that are on the Internet.

    Susan has alluded to the fact that there's a considerable amount of free material out there. People don't expect that they will be compensated for putting it up. However, with the educational community, I think, when you look at the activities that are ongoing, they may be more than just fair dealings in the sense of the fair dealing provisions. So it was felt important nonetheless that, as they go beyond those activities, which are very important for educational purposes, there be some form of compensating creators, but in a way that doesn't impede the ability of the educational institutions to make those uses. So even with free material, if they go beyond fair dealing, there would be a compulsory licensing system. They would be obliged to pay for those extended uses.

    For materials that are not free, it would be entirely within the rights holders' purview to determine themselves how they wished to license their materials, whether they want to exercise control or whether they want to be compensated. So that's the gist of the first option.

À  (1000)  

    The Chair: Thank you.

    Mr. Lincoln and then Mr. Bonwick.

    Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): To follow up on what Ms. Gagnon said, I would suggest something. When you look at the complexity of these options, which you have been working on for several weeks, for us to digest all this the same morning is just asking too much. I would suggest that if the officials could come back after we've had a chance to study these and get some information on them, it would be much more profitable for us than doing it on the fly.

    I've just three questions in relation to the documents; I thought of them quickly as I read them. First of all, we have the WIPO material, which would permit us to ratify, and then we've added access and other issues, which are supplementary and which we would put in the short-term bill. What I want to ask Mr. Stockfish, Ms. Peterson, or another is, if it was proven that the access on other materials--say, accessory materials you're adding in--caused so much controversy, as they inevitably seem to do, and if they were to prejudice the early ratification of WIPO, would you be prepared to just take the WIPO material and go with that in a first step and leave the others for sorting out a little later? That's my first question.

    Second, regarding commissioning of works, what is difficult with your report is that in every case you suggest two alternatives that are really contradictory. Take the commissioning of photographs. On one side you say, well, the commissioner of photographs has the right, and then in regard to privacy and personal photographs, then the photographers get to get an exception. The second option is the reverse, which I would favour: the photographer keeps all the rights and then it's for the commissioner to obtain an exception.

    Then we are faced with two in each case; in education and photography you have two options, and we don't really know what the departments favour in these two options. Then we're back to square one. We have the two controversies before us and we don't know which side you favour. I know which side I favour, but I don't know if it's what you favour.

    I would like to know, for instance, in commissioning as a principle, whether you agree that there are all kinds of models before us. In fact, the Quebec artists, SODRAC and others, have produced a whole list of them where you commission, yet the authors keep their rights through a contract. I would like to know what you feel about this.

    Finally, there are the educational rights. There again we have two options: one is the fair dealing exception and the other is a blanket licence. I would like to ask you this. In the course of your discussions with the people involved...if you have a blanket licence, surely the licence can be adjusted in its cost and fees overall so it reflects the fact that some of the material is freely accessible and obtainable and other material is copyrighted. Surely that can be reckoned with and adjusted through the fee you charge. In other words, instead of having a blanket licence with a very high fee to make it blanket, you take into account in the fee structure, by consensus between the parties, that the intellect part is very different from the printed material.

    These are the questions I have for you to get some reaction, because I really feel we should be allowed to have a second chance of going further with you on it.

    The Chair: Thank you very much, Mr. Lincoln.

    Ms. Peterson.

    Ms. Susan Peterson: We would certainly be pleased to come back and discuss the issues in more detail when you have had a chance to digest it all. We apologize that we didn't get it to you 24 or 48 hours in advance.

    As to your three questions, Mr. Lincoln, we very much want to keep the short-term group of issues together. That's what the section 92 report set out, as you know. Just because issues are required to ratify the WIPO treaty doesn't mean to say those are the only urgent issues, and we would like to keep them all together. Your hypothetical question, frankly, would be a question ministers would have to grapple with if it were to come to that.

    Your second question was that it's nice to have two approaches, but if they're contradictory, where does that leave you? I think that's an illustration of the fact that it's not easy to come to resolution on these issues. We certainly, as I suggested, are willing to come back and go into them in more detail, and after you hear from stakeholders and get advice, you'll feel more comfortable in coming to some sort of view on the approaches that are set out there. That would certainly be our hope.

    On the photography issue, again, yes, there are two approaches there. I rather think that either one could work. One may make consumers feel more comfortable because they.... I don't know, but when one goes out and hires a wedding photographer or a wedding video maker, I'm not sure consumers know whether they have the right to say to the photographers, I don't want you to use this--for other purposes, that is--unless I agree. I'm not sure consumers are that sophisticated. It's a question of where the onus should lie, but it is a question of onus, and we would look forward to your considered opinion on that issue as well.

À  (1005)  

    The Chair: I don't believe blanket licence has been addressed yet.

    Mr. Bruce Stockfish: With regard to literary works that may be on the Internet--and that's the primary concern of educators, because most content on the Internet is literary in nature--the responsible collectives, Access Copyright and Copibec, would very much like to license these rights just as they license literary content in the analog world. They have blanket licences in place now, and they'd like to have blanket licence for Internet content.

    There was a working group established in the past year to grapple with this issue, and it's posted on the department's joint site. Both sides acknowledged there were problems with existing licensing tools. These collecting societies need as part of their repertoire to be able to represent the owners of the content on the Internet. The problem with content on the Internet is that there's so much that even these collectives can't purport to represent everyone.

    That doesn't mean that a licensing approach will not necessarily work. In fact, one of the options we alluded to earlier--and that's set out in the document and is being discussed by the working group--is to create what's called an extended licence, to allow by statute the blanket licence to be extended to cover other repertoires of other owners of content who may not be members of the collectives. This is one approach, and another is a compulsory licence, but it's recognized that we need to make those adjustments you referred to, Mr. Lincoln, in order for the licensing approach to work in the Internet context.

    The educators would prefer to simply have an exception, perhaps as Mr. Cloutier was explaining earlier, for only part of the content on the Internet.

    But these are the approaches we're struggling with as to the best way to do it. We are involved with the stakeholders, and we would certainly welcome input from the committee as well in terms of which is the better approach to pursue. Work will be ongoing regardless on our side and with the working group.

    The Chair: Mr. Bonwick.

    Hon. Paul Bonwick (Simcoe—Grey, Lib.): Thank you, Madam Chair.

    I'll start out with a broader issue and try to narrow it down. I think Mr. Lincoln has very succinctly grabbed the challenge for the committee.

    When I hear terms such as “we welcome your input”, it was my hope, based on the throne speech, and based on the Prime Minister's comments, and based on the minister's comments a couple of weeks ago, that it would be the opposite, that we would welcome your input and that we might have a role in trying to lead this along. We might not simply be provided a status report, but we might actually be able to be seriously engaged in this.

    Unless somebody had an epiphany in the last few weeks, these issues were as relevant five years ago as they are today. So I'm sitting here and I'm struggling with why this is the case. This is where I go with Mr. Lincoln's comments. I'm trying to break through and understand it.

    I'm making ticks here as officials from the Department of Industry or the Department of Canadian Heritage talk. What it boils down to in my mind is that there is a philosophical difference between the two departments. One tends to be very much focused on trying to benefit the creators in the strongest possible way, and one tends to be very focused on benefiting the users in the strongest possible way. It would be my determination that this kind of decision-making should be on this side of the table, not on that side of the table. You would present those two philosophies, and then we would have the discussion about whether, from a balanced perspective, we should be deciding something in the middle or either way.

    I haven't had a chance to review this and I didn't read it when it was presented to me this morning, but the committee has asked on numerous occasions, I think, for two very simple things. We asked officials to identify their concerns clearly and specifically. Let us know what your concerns are, and justify them, and provide all the justification. That is inclusive of any legal opinions you might have.

    Quite frankly, I don't think the committee should accept the guise of cabinet confidentiality on legal opinions, because I see, on a daily basis, that the public accounts committee gets cabinet documents of a much more sensitive nature than whether or not we should be moving towards some change in the private copyright regime.

    Can we set aside a meeting next Thursday to have the officials back again, where we can have an opportunity to bring forward our questions, our concerns, to identify their specific concerns, and perhaps take a more proactive or lead role on this rather than simply commenting or providing input?

    I know we've talked about it and talked about it, but I am curious about one thing. When we had the briefing some year ago or better, when Mr. Lincoln was in the chair...could you articulate what is different in your briefing today from what was in your briefing a year ago when we asked you to move forward and get this process underway?

À  (1010)  

    Ms. Susan Peterson: As I said, once you've had a chance to have a look at the document, we would be eager to come back.

    It will be very interesting. I too am curious as to how the new approach to parliamentary committees is meant to work. We think that we've gotten off to a good start by tabling the status report, and we'll keep on working with you by coming back and discussing the issues.

    This is fairly complicated, but it's clearly of great import to lots of people. Unfortunately it is one of those areas that tends to get bogged down in jargon, but we'll try hard to have a back-and-forth with you where we can really understand what the specific concerns are.

    I agree that when you read this you might say, “Oh my God, what am I supposed to make of this?”, because it gets you this far, but it doesn't get you further. So yes, we'll come back and we'll see how much farther we can get. We'd be pleased to do that.

    Hon. Paul Bonwick: Actually, I'm not intimidated by it, and I'm not sitting here asking what I should do with this. What I am sitting here looking at is the fact that the most relevant thing on this--I've just sort of scanned through it--is dated March 24, 2004, when in my opinion it could be a typo. It could just as easily read March 24, 2003, or even 2002.

    So I guess that's where I'm coming from. I don't know what is different about this status report from the briefings we received a year ago. We knew these issues were sensitive. We knew photography was sensitive and there were going to be two different approaches on it. We knew the private copyright regime was sensitive and there were going to be two different opinions on it.

    I'm becoming frustrated, sitting here. I think we knew this five years ago. If we knew this five years ago, if we knew this last year, and the committee gave some direction, why are we not moving forward? That's where I think we have a responsibility. I thank you for offering to meet with us again, because I think it's very pertinent that we start to get on with it.

    My last point is one that nobody touched on. I do not see justification for your concern on the private copy regime. There is supposed to be a legal opinion floating around out there somewhere, and I've been told that it's owned jointly by the departments of heritage and industry. So let's see it.

À  (1015)  

    Ms. Susan Peterson: Madam Scherrer said she would get back to you on that issue, and her cover letter with this report does address the issue of legal opinions.

    Hon. Paul Bonwick: Okay.

    The Chair: As you know, Ms. Peterson, since we received this document only once the meeting was convened, we're at a disadvantage. As well, Mr. Bonwick had to be at another committee meeting where he's the parliamentary secretary, so....

    Ms. Susan Peterson: I can read paragraphs two and three, if you like, which start out referring to when Madam Scherrer was here:

Another issue that was raised at that time was ratification of the two treaties that were negotiated under the auspices of the World Intellectual Property Organization (WIPO) in 1996. Members of the Committee raised the matter of a legal opinion regarding the private copying machine. Certain members asked that, as a matter of transparency and cooperation, I share with your Committee a copy of the legal opinion. I indicated at that time that I would look into this matter and respond to the Committee.

During the course of policy development, Ministers and their departments often seek legal advice from the Department of Justice. Legal opinions are protected by solicitor-client privilege. The Minister of Justice has confirmed that it is the policy of the Government of Canada not to waive this privilege. Furthermore, the Privy Council Office has indicated that this policy is consistent with the normal practice of parliamentary committees not to require an officer of a department to produce any paper which, according to the rules and practice of the House, the House itself would not require. Accordingly, I am not at liberty to share legal opinions relating to the ratification of the 1996 WIPO treaties, but welcome the Committee's views on the private copying issue and other matters described in the status report.

    Hon. Paul Bonwick: Thanks very much for reading that, but quite frankly, I think at this point in time what you're doing is wasting the committee's time. If you are asking for the committee, or if the minister is seriously asking for the committee, to become engaged in this topic, and you're prepared to hide behind, “We're not required to share all the information”, then how are we supposed to have proper input?

    Quite frankly, that answer is simply unacceptable. If the department is not prepared to share information with the committee, then I suggest that perhaps we should be hiring our own expert and getting our own legal opinion. Clearly, we cannot get all the information from the department, and I think that's terribly unfortunate when we talk about parliamentary reform.

    The Chair: Ms. Peterson, very quickly, because I have still a number of people who want to ask questions.

    Ms. Susan Peterson: When we come back and meet with you, we'll certainly be ready, willing, and able to discuss all the issues surrounding the private copying regime without tabling a legal opinion.

    As well, Mr. Denis Kratchanov from the Department of Justice is here, if you would like to hear from him. He's the director and general counsel of the access to information and privacy law section of the Department of Justice.

    The Chair: I think at this point we still have a lot of questions. I'd like to move on to try to get as many questions out as we can at this point. We could bring the officials back next week, and sooner rather than later, I suggest, since next Thursday the Auditor General has agreed to appear before us to deal with her report. I know I'm asking...but if we take the weekend as well to look at this, then perhaps we can come back on Tuesday.

    I know Madam Allard still has a question, and I have to come back to you, and I have a couple of questions as well.

    For the record, just because it's been brought up--Ms. Peterson did read that letter into the record--my understanding from my 20 years of legal training is that it is not the solicitor's privilege, it is the client's privilege. Therefore, with all due respect to the departments of industry and heritage, the solicitor doesn't waive the privilege, the client waives the privilege. I just wanted to have that on the record.

    That said, I'm going to move quickly to this side, and then Madam Allard, and then I'll have a couple of questions.

    Madam Gagnon.

[Translation]

    Ms. Christiane Gagnon: I will continue along the same lines as Mr. Bonwick, who separated the viewpoints of Heritage Canada from those stated by Industry Canada, to see if you share the same point of view on the use of the Internet for educational purposes. Earlier, you seemed to say that the creators, the artists were not expecting royalties because they simply wanted their information to be distributed. I know, from my discussions with some creators and authors, that they do not all feel that way. Your opinions on the protection of copyright seem to agree with what Mr. Stockfish and Ms. Bincoletto said earlier.

    Is that right? Did I understand correctly? You seem to be a little disconnected from the way in which the authors and creators see this issue, since they don't seem to share your viewpoint; in fact, they are somewhat concerned.

À  (1020)  

    Ms. Susan Bincoletto: I will let my colleague answer in a minute, but I want to make sure that you have understood what I was saying earlier. I am not assuming that everything that is found on the Internet is put there free of charge, but there is a certain level of content available. If you provide information that you want to share, you are not necessarily expecting to be paid for it. You decide to share the information through the Internet, and that's it. If people want to put their work on the Internet and control it, that is another story. We must determine who wants to be compensated and control their information, and who does not. That is the challenge for us.

    There are two possible approaches. Educators say that if it is free, no licence should be required and they should be allowed to use this information because it is openly available to everyone. Others say that problems could arise because we cannot determine whether or not everything that is available is indeed free of charge.

    Therefore, would it not be better—and this is the second approach—to have a general licence that would at least protect all of the creators? If we were to pay those who were not expecting any type of compensation, so be it, but at least the creators of the work would be protected. Except that there is already a great deal of information available on the Internet for everyone to use.

    When it comes to public policy, should we subject all of these sites to the same broad licensing rules? That is the question. How far do we want to extend the Copyright Act? This not only involves the users or rights holders, but it is a matter of determining where or if we want to draw the line. Should we draw it here or there? We are not challenging the fact that the Internet represents a business model for creators who are absolutely intent on making proper use of it. They need additional control, and they must be provided through the act. That is all.

    Ms. Christiane Gagnon: Mr. Stockfish, I would like to hear what you have to say.

    Mr. Bruce Stockfish: It is clear that some outlooks differ from those of the department, and that is normal. All of the departments have something to contribute to this type of issue, but what they have in common is a desire to balance the rights of the users and those of the rights holders.

    How can this balance best serve the public interest? That is what we are trying to determine. Our starting point is the licence. Of course, we realize that some works will be provided free of charge. There could be some way of recognizing them through a licence. If licensing doesn't work, then we would have to create exceptions, but as a last resort, since we must consider the public interest.

    The debate continues. There are, of course, two approaches and perhaps eventually we will end up with an exception, but for us, the starting point involves licensing.

    Ms. Christiane Gagnon: So we will have to put these questions to the people who are directly involved, the creators and the authors. And we will have to pay close attention to what they have to say.

    Thank you.

    The Chair: Ms. Allard.

    Ms. Carole-Marie Allard (Laval East, Lib.): Thank you, Madam Chair.

    I would like to tell you that I appreciate your coming to this committee this morning and I think that the document you have presented to us is a welcome one, because in a complex area such as this one, anything that helps us move forward is positive. Therefore I would like to thank you for presenting this to us.

    I think that underlying all the members of Parliament's comments is the idea that we are not moving quickly enough. Take, for example, the issue of photographs. The other day, we heard a witness who gave us a very clear explanation of the importance of photographs in this issue and we also have been told that Industry Canada and Heritage Canada have very different opinions.

    Looking at the document this morning, more specifically the part dealing with photographs, I do not get a feeling for both departments' positions, but it does say, however: "... consumers who commission photographs..." So maybe it's the tone that is a little difficult to discern. I think that it is healthy to truly want to know what Industry Canada's position is, what Heritage Canada's position is, and what the real issue is. I have been asking that question for the year and a half that I have been working on this issue.

    Now I have you before me, Ms. Bincoletto, and you have given us a document, which includes the area of photography. What can one conclude from Industry Canada's position on the specific issue of photographs?

À  (1025)  

    Ms. Susan Bincoletto: You are asking me to provide you with a position that we have not yet perhaps finalized. The reason why those two elements are included is that we have come before this committee three times since last fall, and I don't think this is the first time that those two elements have been mentioned, that is, privacy and personal use.

    In terms of photographs, currently, when individuals commission photographs from a photographer, as Ms. Peterson said in her introductory remarks, the consumers may not know what their rights are and how far the photographer's rights go. Currently, it is the person who commissions the photograph, who purchases the photograph, who has the copyright. That is the current rule.

    What is being studied is the possibility of transferring that copyright from the person who purchases the photograph to the photographer. That is a significant leap.

    Ms. Carole-Marie Allard: I understand that, but do both departments agree on doing that?

    Ms. Susan Bincoletto: Yes, absolutely. We are not challenging the need to harmonize rules to ensure that photographers are treated the same way as other creators and I think that we already said that last fall. That is not the issue. The issue is, in moving this copyright from the person who purchases the photograph to the photographer, should we be taking care to protect consumers who currently think that they own everything, and who would lose the copyright?

    There are also privacy issues with copyright. For example, could photographers continue to use photographs that they have the copyright for in order to put them on a website which a photograph of the person who commissioned it?

    Ms. Carole-Marie Allard: Therefore, you share the same concerns surrounding photographs. Is that what we can conclude? Then, all we need to do is hear consumer associations on whether or not they support this.

    Ms. Susan Bincoletto: And that is exactly what we suggest, because we need to know whether this is a problem or not. If it does not cause a problem for consumers...

    Ms. Carole-Marie Allard: Then why have you not written in your document that Industry Canada and Heritage Canada agree on this issue? That leaves the consumers; let's ask their opinion, and move ahead. It's a little, you know...

    Ms. Christiane Gagnon: Could you give us some suggestions regarding use, regarding the type of protection that should be included in the Copyright Act? We also need that. We need your opinions. Then, witnesses can come and tell us whether they want this or not.

    Ms. Carole-Marie Allard: I would like to conclude, Madam Chair.

    I think that we need to have the provision being proposed by the department and a text in order to be able to discuss this issue. I think we are capable of reading the provision and of deciding whether or not... We need to bring this all together. We can't always meet and hold endless discussions without knowing which direction we're taking.

    I agree with you, Ms. Gagnon.

[English]

    The Chair: If I may, I seem to be hearing from the committee--and this is to the officials--that we have two opposing positions throughout. I guess I share Mr. Bonwick's comment about what's different today from the way it was last year or the year before. Where have we moved, and where haven't we moved? I think the committee would like to know where we have consensus and narrow down where there is a problem, because we have two extreme opposite positions on both sides. If we can have that, we'll be in a much better position. Perhaps the departments can do that for us.

    Following up on what Madam Allard has said, I find it frustrating when you talk about the privacy issue--and I don't see it here. You have mentioned that Senator Day has a private member's bill in the Senate, which is Bill S-16. It has been put forward and is dealing with these issues right now. It will come to us very shortly. In fact, under the rules we could bring the witnesses before us right now, and once it comes to us we could immediately go to clause-by-clause, which is also an option for us.

    However, you don't say here that there is also a Supreme Court of Canada decision that deals with the privacy issue. So why is that being left out of this? Again, I feel we're only getting little bits. It is complicated, and nobody says it isn't. But certainly we need all the facts before us so we can make decisions. It is going on in the Senate. It's been put there, but it isn't there.

    So I would ask if we could meet next week. Before that, perhaps you could take what we have and not just give us extremes, but find the middle ground here. Where do you agree and disagree? Narrow it. Surely you can do that for us, instead of taking these extremely opposite positions.

    That seems to be what I'm hearing here. I'm looking at the committee to get some further direction from you.

    Mr. Lincoln has one more point. Perhaps we'll go there.

À  (1030)  

    Mr. Clifford Lincoln: I would like to ask Mr. Stockfish and Ms. Bincoletto a question.

    They are the key officials working on the substance of this. How does the process evolve, from your standpoint? At what point do you decide, as my colleagues have said, that out of these two contradictory positions on every issue, you'll choose one over the other? What is your process? Who decides this? Is it one of the ministers; is it the two ministers having coffee together?

    Do both of you and your colleagues sit together and decide whether to fish or cut bait, and arrive at (a) or (b), or a mixture of (a) and (b)? How does this evolve? That is what we want to know. At what point are you ready to come to us with the option the two ministries and the ministers have decided to follow? Then you fight it out. You just say, “Oh no, we disagree”. The committee tears its shirt in public, and that sort of thing--or you agree or disagree. At what point does this happen, and how does it happen?

    Ms. Susan Peterson: Deadlines help.

    Some hon. members: Oh, oh!

    Ms. Susan Peterson:I'm not being facetious here. This report is here today because we wanted to have it here today to respond to your request and the commitment that the Minister of Canadian Heritage made to table it in front of you. Similarly, the ministers want to go to cabinet in the fall and get a bill in the House as soon as possible thereafter. That is the game plan we're working to. When you have a game plan to work to, it helps crunch issues. There's no doubt about it.

    I think when you read this document you will find that there is some coming together and narrowing down of options. It's a mischaracterization of this to say it's just a statement of two extremes, with no idea of a middle ground.

À  (1035)  

    Mr. Clifford Lincoln: Ms. Peterson, I'm sorry to interrupt you, but first of all, are you saying now that the earliest for anything to be tabled would be the fall; and secondly, are you saying...?

    I can't agree with you. There are two options, but the two options are contradictory in each case, surely. They don't fuse at all. They are two different ways of approaching the same thing.

    In the case of photographs, for instance, one is exactly the reverse of the other. In the case of education, one is exception to fair dealing; the other one is a blanket licence. Surely they are not the same thing. They are just, it seems to me, apples and oranges. How do the two become one fruit? That's what I want to find out.

    Ms. Carole-Marie Allard: I think you would have to have the section of the law and see what's in it.

    Ms. Susan Peterson: Mr. Stockfish will add to my comments, but if you look at the photography issue on page 5, basically paragraph 23 says, okay, for commercial photography, no issue, so the photographer holds copyright. That is the proposal. Then the one problematic issue is consumers who think, when they go a photographer and have wedding pictures taken or God knows what else, they are there for their personal use and not for anybody else's use. What do we do about that issue? Then you have (a) and (b).

    So there is agreement that the issue should be addressed, and (a) and (b) are simply two different sides of the coin of how to do it and the onus on one side or the other.

    Mr. Clifford Lincoln: Exactly. One is the United Kingdom approach; the other one is another approach. Which one do we favour?

    The Chair: And what is the problem, again?

    I believe, Mr. Stockfish, when you were speaking you said what we try to do is come to a common point as a starting point. Could you do that for us? Could you bring us to the starting point? What are the common points?

    Ms. Peterson, again, I haven't had the opportunity to read this document, but if there truly is common ground, maybe you could underline it, highlight something. I don't mean to be facetious. We're struggling to speak with this because we want this to move forward. We can't continue to see it as this being one way and that being the other way. Even if it means taking one issue--let's deal with the photographs--and move forward on it....

    On the privacy thing, again, where is the Supreme Court's position on it?

    Mr. Bruce Stockfish: This is an 11-page document in English. It's an attempt to show common positions, common approaches with regard to the issues, but we won't deny that there are different approaches that remain to be considered--further analysis, further consultations, further work with this committee and by this committee in order to arrive at final positions. We're more than happy to come back to elaborate on the discussion in this short document, and of course we'll get into the Supreme Court decision on privacy and whether in fact it applies across the country. That's part of the concern with regard to privacy law. It's a matter that falls under provincial jurisdiction. So it's a question of how we deal with it in this case.

    But to take photographs as a very quick example--it's something we can get into later--there are three issues under photographic works, all dealt with in Senator Day's Bill S-16. On the first two issues, authorship and term of protection, the approach that is set out here is a common approach, and it's in accordance with what Senator Day is approaching. Even with regard to commissioned photographs, the approach remains the same. It is a question, though, of how we deal with concerns with regard to personal or private use of commissioned photographs, a subset of the issue, and the question is how we take care of the concerns with regard to personal use or privacy.

    There are two approaches that need to be resolved. One way of dealing with that is to leave copyright in the hands of the commissioner of the photograph. The other is to leave it in the hands of the photographer, but with a limitation. It is a question for further discussion, further analysis, further consultation. We think in the end there can be a resolution of this.

    To answer the earlier question, obviously when there are two approaches, ministers ultimately decide at cabinet, and if it goes to that level, then that's where it goes. We always set out options for ministers to decide when it goes to cabinet, and these could be two of the options. Clearly there needs to be a recommended option for the decision to take place. We're not quite there yet. We hope to be there very soon.

    This sort of discussion can take place on virtually all the issues. Yes, we're farther apart on some, but you'll see that we're close on others, and it's a view to come together on all these issues.

À  (1040)  

    Mr. Clifford Lincoln: What is your deadline for the recommended option?

    Mr. Bruce Stockfish: It's the intention of the departments to have ministers go to cabinet sometime later this year to seek drafting instructions with a view to drafting a bill that would address all of these issues as required. In order to do that, we need to obviously conduct further work with regard to those issues where there is more than one approach. That would include working with this committee over the coming weeks and months.

    The Chair: Mr. Stockfish, again, having said that there are some places where you're closer together, can you show which are the closer ones and which are the farther? Can we do this so that we have a starting point that way? Let's deal with the easy issues, take those off the list and move it forward. Otherwise, we're spinning our wheels. We just keep recycling the same information over and over. If you could just make it tighter for next week, that would be greatly appreciated.

    Mr. Bonwick.

    Hon. Paul Bonwick: This is building on the chair's position. Through the chair, what I think would be of use, for my purposes and as Mr. Lincoln has said, would be if you very clearly and specifically identify your common ground. As well, it would be useful if you could very clearly specify your concerns and justify your concerns. If that is possible, that would be very helpful.

    From the perspective of identifying what the two options are, Mr. Lincoln is exactly right, there are two further elements therefore being considered.

    Ms. Bulte, you'll remember that when we were briefed on this in May last year, these exact two scenarios were brought forward to us, being considered of course.

    On the issue on the legal opinion--and this is more for the committee's purpose than it is for the officials from the departments--the Prime Minister is hosting a meeting this afternoon from 3:15 to 5:15 for parliamentary secretaries to talk about how this democratic reform is taking place. Mr. Himelfarb, I understand, is going to be in attendance. I think they'll be very interested to hear my comments.

    The Chair: Mr. Bonwick, as you know, this committee presently doesn't have a parliamentary secretary. So perhaps you could speak on our behalf when you're there.

    Mrs. Lill.

    Ms. Wendy Lill: I want to make one comment on what I'm hearing and pick up on what Mr. Lincoln said about what your process is.

    We just finished a broadcast study that took us a great length of time. It was a very complicated area of study. We had some experts working with us who provided us with a paper, which we used as a backgrounder, but it also provided, in each subject area, several options. It basically talked about the status quo, talked about the various positions that we were hearing widely. It tried to reach various points of synthesis and gave us three or four places to look at and to, quite frankly, battle over in this committee. We did that at great length.

    It seems to me that has to be a process you're experiencing as well. In your process, you have to be battling over give and take, and what you're going to give in and what you're going to hold onto. We're frustrated that we're not seeing that. All we're seeing are the two lines. It's just two, two, two. We need more than two. We have to see three. We have to see four or five, or one, that's right. That's just trying to get at what we're looking for so that we can add to this collective growth here.

    The Chair: If I may conclude, here, I want to thank you on behalf of the committee for coming here, sincerely. We sincerely mean that.

    We're frustrated because of the fact, as I think you understand, that this committee wants to take this opportunity that has been given to us now, wants to be fully engaged to move the issues forward. We want to be able to help our ministers make the recommendations.

    I think you're hearing that from the people here. We want to do more than just pay lip service to it. We want to become fully engaged. If we have to, we'd like to be in a position to make the recommendations to the ministers to take it to cabinet, not let cabinet decide and then bring it back to us. That's where I think my colleagues and I are coming from. We don't want to wait for cabinet to make those decisions. We want to help make those decisions now.

    We do appreciate that you have come and that you did get this report. Now we'd like to continue to work with you to move this thing forward. I would appreciate it if we could try to meet, please, next Tuesday in the afternoon at our regularly scheduled time, because we have scheduled the Auditor General to come on Thursday.

    Again, please accept that the questions and the comments are made with the intention that they are to work together in partnership to move this file forward.

    Thank you very much.