HERI Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Tuesday, October 21, 2003

Á

1110

The Vice-Chair (Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance))

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

Ms. Danielle Bouvet (Director, Copyright Policy, Department of Canadian Heritage)

Á

1115

Á

1120

Á

1125

Á

1130

Á

1135

Á

1140

Mr. Bruce Stockfish

Á

1145

The Vice-Chair (Mr. Jim Abbott)

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

Á

1150

Ms. Danielle Bouvet

Ms. Carole-Marie Allard

Mr. Bruce Stockfish

Á

1155

The Vice-Chair (Mr. Jim Abbott)

Mr. Paul Bonwick (Simcoe—Grey, Lib.)

Â

1200

Mr. Paul Bonwick

The Vice-Chair (Mr. Jim Abbott)

Mr. Paul Bonwick

Mr. Bruce Stockfish

Mr. Paul Bonwick

Mr. Bruce Stockfish

Mr. Paul Bonwick

The Vice-Chair (Mr. Jim Abbott)

Ms. Liza Frulla (Verdun—Saint-Henri—Saint-Paul—Pointe Saint-Charles, Lib.)

Mr. Bruce Stockfish

Â

1205

Ms. Liza Frulla

Mr. Bruce Stockfish

Ms. Liza Frulla

Mr. Bruce Stockfish

Ms. Liza Frulla

Mr. Bruce Stockfish

Ms. Liza Frulla

The Vice-Chair (Mr. Jim Abbott)

Mr. James Lunney (Nanaimo—Alberni, Canadian Alliance)

Â

1210

Mr. James Lunney

The Vice-Chair (Mr. Jim Abbott)

Mr. James Lunney

Mr. Bruce Stockfish

Mr. James Lunney

Mr. Bruce Stockfish

Mr. James Lunney

The Vice-Chair (Mr. Jim Abbott)

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance)

Â

1215

Mr. Bruce Stockfish

Mr. Chuck Strahl

The Vice-Chair (Mr. Jim Abbott)

Â

1220

Mr. Bruce Stockfish

The Vice-Chair (Mr. Jim Abbott)

Mr. Bruce Stockfish

The Vice-Chair (Mr. Jim Abbott)

Mr. Bruce Stockfish

The Vice-Chair (Mr. Jim Abbott)

Mr. Bruce Stockfish

The Vice-Chair (Mr. Jim Abbott)

Mr. Bruce Stockfish

Â

1225

The Vice-Chair (Mr. Jim Abbott)

Mr. Paul Bonwick

Mr. Bruce Stockfish

Mr. Paul Bonwick

Ms. Carole-Marie Allard

Â

1230

Mr. Chuck Strahl

Ms. Carole-Marie Allard

The Vice-Chair (Mr. Jim Abbott)

Ms. Carole-Marie Allard

The Vice-Chair (Mr. Jim Abbott)

Ms. Carole-Marie Allard

Mr. Bruce Stockfish

The Vice-Chair (Mr. Jim Abbott)

Mr. Chuck Strahl

Â

1235

Ms. Carole-Marie Allard

The Vice-Chair (Mr. Jim Abbott)

Ms. Liza Frulla

The Vice-Chair (Mr. Jim Abbott)

Ms. Liza Frulla

Â

1240

Mr. Bruce Stockfish

Ms. Liza Frulla

The Vice-Chair (Mr. Jim Abbott)

Mr. James Lunney

The Vice-Chair (Mr. Jim Abbott)

Mr. Chuck Strahl

Mr. Bruce Stockfish

Mr. Chuck Strahl

The Vice-Chair (Mr. Jim Abbott)

Mr. Paul Bonwick

Â

1245

Mr. Bruce Stockfish

Mr. Paul Bonwick

The Clerk of the Committee

Mr. Paul Bonwick

The Clerk

The Vice-Chair (Mr. Jim Abbott)

The Clerk

The Vice-Chair (Mr. Jim Abbott)

Mr. Paul Bonwick

The Vice-Chair (Mr. Jim Abbott)

Ms. Carole-Marie Allard

Mr. Bruce Stockfish

The Vice-Chair (Mr. Jim Abbott)

---

CANADA

Standing Committee on Canadian Heritage

---

NUMBER 051

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, October 21, 2003

[Recorded by Electronic Apparatus]

Á  (1110)  

[English]

    The Vice-Chair (Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance)): I call this meeting to order. I was asked by the chair to sit in as chairman for this meeting today.

    Having a sufficient minimum number of people in attendance at this meeting, we can proceed. My feeling is that it's more important that we get some of the expert views on the record than to wait for an official quorum, because we can all work with the Hansard, and we really highly value the input from the witnesses.

    This is a continuation of the hearings on Canadian copyright law. Department officials are here and will be concluding their presentation.

    I understand you have approximately 20 minutes or so to conclude your presentation, and following that, we will be able to have an opportunity for members to pose questions and get some clarifications.

    Would you proceed, Mr. Stockfish.

    Mr. Bruce Stockfish (Director General, Copyright Policy, Department of Canadian Heritage): Thank you, Mr. Abbott.

    Just to remind the members, I have my colleagues with me--from the Department of Industry, Susan Bincoletto and Albert Cloutier, and from the Department of Canadian Heritage, Danielle Bouvet.

    Last time, Mr. Chairman, we were giving you a presentation on the past reform efforts of the government, the current reform process, the efforts we've made with regard to issues pursuant to that process, some of the consultations we've undertaken, and where we're at now in that process. My colleague, Madam Bincoletto, was reviewing a number of the short-term issues the government is engaged in. These short-term issues were identified in the section 92 report. We gave you a brief overview of the status of those various issues.

    Now I would like to turn to my colleague Madam Bouvet, who will discuss some of the international implications, the international context, surrounding our considerations of those issues. Then she will turn to some of the medium- and long-term issues that we identified in the section 92 report. These issues were prioritized according to the various criteria and principles that we had set for ourselves in the section 92 report, but of course these are not carved in stone. It's for this reason we are working with this committee, as part of the section 92 review, to seek further guidance on the correct path for pursuing our copyright reform objectives.

    Then, Mr. Chairman, we will be pleased to turn to you and members of this committee for questions.

    Without further delay, I will turn to my colleague Madam Bouvet to discuss these aspects of the presentation.

[Translation]

    Ms. Danielle Bouvet (Director, Copyright Policy, Department of Canadian Heritage): Thank you, Mr. Chairman.

    I will be making my presentation in French. Let us begin on page 15 of the document that was distributed at our last appearance.

    Page 15 deals with the international context. As surprising as it may seem, the two treaties referred to by my colleague, Susan Bincoletto, at her last appearance, have been implemented by only very few industrialized countries, even though they were concluded in 1996. The United States implemented the two treaties in 1999, and of the countries that are members of the European Community, only Italy, Greece, Denmark and Austria have fulfilled the obligations arising out of the implementation directive of these two treaties. A bill was tabled by the United Kingdom very recently, but it is still at the very beginning of the legislative process. Germany took a big step last September, but it still has some work to do to complete the exercise.

    Moreover, we must rely on the American experience to talk about the impact of these two treaties to date, because it is about the only one we know about. Generally speaking, I think we can say that authors, producers of sound recordings and performing artists whose performances have been captured on these sound recordings are satisfied with these two treaties, because they provide extra protection over what already exists under various international conventions. Generally speaking, they are satisfied with the two treaties.

    Let us talk about the users who will have to deal with this increased protection. Of course, a number of institutional users, such as schools, libraries, consumers generally, broadcasters and telecommunications companies have concerns about these treaties.

    In the United States, the greatest controversy is about the measures designed to prevent reproductions—which are called the technological protection measures—and all the issues related to access are highlighted by a number of cases that have been heard by the American courts.

    In Canada, we are following these judicial developments very closely. We will take all of these factors into account in developing policy and introducing implementation measures for these two treaties. It must be understood that these two treaties give us significant latitude, and when we can use them, Canada will of course ensure that it strikes a balance between the interests of the creators and those of the users.

    Those were the comments I wanted to make regarding the international context.

    Let us talk now about the medium and long-term issues. I would ask you to refer to page 10 of our presentation from last time, where we list the medium and long-term issues.

    As my colleague was saying regarding the first group of issues, a number of national and international considerations have caused the government to deal with these issues as quickly as possible.

Á  (1115)  

    As for the second group of issues, the research and the planned legislative amendments are even further from being implemented, and the timetable is even less definite because there is no international obligation that could force us to move more quickly. Even though certain issues are already being researched and analyzed, as I have said, there are no specific parameters or timetables that require us to move ahead.

    I would like to deal with each of these issues, Mr. Chairman, because it would not be appropriate for me to exclude any of them. So I decided to include all these issues in my presentation and if you have comments or questions during my presentation, please do not hesitate to interrupt me.

    I will begin with the first point, which is further or new technology issues. When we wrote the report, we were thinking about any issues that still needed to be looked at and new issues that might arise from the use of digital technology or Internet-related practices.

    The report gives the example of how current types of recourse apply in the digital context. Although the act allows creators to seek compensation, even in a digital context, the following question must be posed: are the types of recourse that currently exist adequate to enable creators to fully exercise their rights in a digital context?

    Since these developments are still in their very early stages, it is difficult to know how the various parties will react. I will not really go into that, since the issues have not yet been thoroughly identified.

    Where audio works are concerned, the concern is with authorship. In its current form, the Copyright Act does not identify the authors of audiovisual works. In the case of documentaries, dramas, television programs, multimedia works, the authors are not easily identified. Is it the screenwriter? The director? The producer? Is the author of a musical work the lighting manager or someone else who may have had a hand in creating that work?

    There are a number of possible reactions from those involved. Many creators want to be recognized as the authors of these works. In some cases, the question has risen as to whether the producer could be considered to be an author and, if not, if he could be recognized as the first holder of the copyright or the holder of a neighbouring right. That is the main issue where audiovisual works are concerned. Ownership of audiovisual works will also have an impact on the length of copyright protection and the transfer of rights. As long as the ownership question is not resolved, these related issues cannot be dealt with.

    Crown copyright is the copyright attached to works produced by the federal, provincial and territorial governments, as well as by agencies of those governments, such as government studies. Some people wonder whether the rights to parliamentary debates belong to the Crown. Does the Crown hold the rights to the various statutes and regulations? What about legal rulings?

    Unless it is proven otherwise, governments hold the copyright on works produced by departments. There are currently various government policies aimed at facilitating access to these works. We have government on-line and Canadian culture on-line. There are also orders in council that provide for access to the acts and regulations.

Á  (1120)  

    In these circumstances, we have to consider whether the Copyright Act should be amended or whether, in practice, existing or future arrangements will not enable the government to avoid legislating in this area. As for potential reactions, there are certainly departments and Crown corporations that are very concerned about this issue. The CBC and the National Film Board, for example, are determined to maintain their rights over works produced within their institutions. Library and archive users also have a point of view. This issue has to be examined by various levels of government. I have mentioned the federal government, but the provinces and territories are also holders of Crown copyright. When this issue is dealt with, all three levels of government need to be consulted.

    Coming now to collective rights management, I would simply remind you that Bruce indicated, when he was talking about copyright in general terms, that the current legislation allows for rights to be exercised individually or collectively. Every time Parliament considers adding new protection measures in the legislation or deals with access issues, the matter of collective rights management comes up.

    We know that licensing bodies have been set up to facilitate the granting of licences and to reduce costs for users. Bill C-32, which came into force in 1997 increased recognition for licensing bodies. Whether the issues are tied to digital technologies or traditional practices, the government is faced with this issue all the time.

    Moreover, a great deal of work has been done on the administrative front to help licensing bodies adapt to new technologies. For example, Heritage Canada provided large grants to the licensing agency Access Copyright so that it could grant on-line licences. The Copibec agency has also received funding to be able to offer its services on-line. For special events, such as weddings, users can now go through an on-line service of SOCAN to get a licence.

    The following questions arise and warrant your consideration. Should the act be amended to further facilitate work in a digital context? The licensing bodies would be more than happy to have a mandate that would make their work easier in that context. Should the number of licensing bodies be reduced? Canada already has 36 such agencies; if these measures were taken, what would be the impact on the licensing bodies? What impact would there be on control by authors?

    Finally, we know that some creators, publishers and producers do not want their rights exercised collectively. They prefer to hold the rights as individuals. All that has to be taken into account when we look at these issues.

    The next issue is the term of protection. As my colleague Bruce Stockfish mentioned, the general rule is that copyright is protected for the life of the author plus 50 years. In the United States, as we know, the term of protection is life plus 70 years. The European Union has gone the same route, which means that life plus 70 years is the norm in the European community. In the international context, there is a clear trend toward increasing the term of protection. In Canada, we have to look at whether we should harmonize our legislation with that of our trading partners.

Á  (1125)  

    Of course, these countries are lobbying to have increased protection given to foreign creators, even in Canada. We can expect that the creators will be in favour of extending the length of time during which this protection would apply. The users, however, do not share that opinion.

    There is an exception in the report for ephemeral recordings. A recent decision by the Copyright Commission states that royalties must be paid when broadcasters reproduce musical recordings. I'm sure that all members of this committee are familiar with this issue. To make a long story short, I would say that under the present act, licensed broadcasters can temporarily reproduce sound recordings in order to facilitate their program activities; they must, however, pay a royalty to the licensing companies.

    Only five years ago, this matter was the subject of a very serious debate under Bill C-32; I'm sure the Chairman will remember that. Essentially, the broadcasters felt that since the copyright holders were already being compensated for the broadcast of their material, the exception should apply at all times, notwithstanding the fact that licensing companies were involved.

    The copyright holders feel that the act should be maintained in its present form and insist that the provisions adopted in 1997 remain in force. They have even organized in order to defend this right and they feel that reproducing music on a hard drive will lead to a drop in production costs for radio stations. As production quality is also involved, they believe that in such circumstances, the broadcasters should be made to pay.

    I would also mention the March 2003 Copyright Commission decision which set the rate for musical reproduction to be paid by the broadcasters at about 1 per cent of their revenue. This rate only applies for radio stations that copy material. If a broadcaster decides not to reproduce sound recordings, then there are no licence fees.

    The final point in the program, for the medium term, involves making copies for private use, another issue that you are no doubt familiar with. In C-32, a private copying regime was instituted for consumers who copy music for their own use, since copyright holders are unable to exercise any real control over this type of activity. Copy of musical recording for private use is allowed under the regime; in exchange, a collective payment scheme was instituted. Importers and manufacturers of blank audio recording material must pay the royalties which are then remitted to the Canadian Private Copying Collective, the CPCC in English or the SCPCP as it is known in French.

    Cross-subsidization is one of the main problems that can be attributed to this regime. These are royalties paid by those who purchase the recording media with no intention of using it to copy music. For this specific situation, the CPCC devised what they call a zero tax program. Those who feel that they should not pay the royalty can apply for a zero tariff from the collective. This allows them to avoid having to pay royalties on media that will not be used to copy music.

Á  (1130)  

    I will now discuss technological protection measures. What if creators could some day encrypt their sound or musical recordings so that no one could make a private copy without their permission. If that were the case, would the private copying regime still be necessary? We are taking a close look at these two extremely important issues.

    How would those directly involved react? The manufacturers and importers are the ones who pay the royalties. Obviously, they would like to see this regime abolished and they feel that the technological protection measures, for example, should replace the private copying regime.

    It is more expensive for the consumer, who is not that happy about having to pay more, even though this allows for the legal recording of music for private use.

    As to the copyright holders, they are, in general, satisfied with the regime. The latest decision resulted in some $30 million a year in royalties paid to the copyright holders. As I said, they have found administrative solutions to the problem of cross-subsidization.

    A number of issues are involved. Can these problems be solved through legislative amendments or must we wait for technological protection measures to be developed before considering amendments? That is one issue.

    Mr. Chairman, I would briefly like to deal with matters relating to the third category. For the most part, these issues have a national and international dimension requiring a great deal of further analysis and research.

    We must first consider the protection of traditional knowledge. Among the various forms of traditional cultural expression that the Aboriginal populations wish to protect, I might only mention stories, songs, music, dances, plays, painting and decorative works of art. Many of these forms of expression may already benefit from some protection under the Copyright Act or other types of intellectual property. The Aboriginal people are most concerned about the improper use of their stories, their sacred songs and symbols. There's also the matter of their practices, languages and knowledge. The Aboriginal people would of course like us to find some way to protect their heritage and languages. What we have to determine is whether or not the Copyright Act can truly offer them the protection that they seek. Many questions arise. A number of acts, including the Patent Act, the Trademark Act and other mechanisms are being examined at this time.

    This matter is being closely examined by the World International Property Organization. Member states come together twice a year to discuss the issue. We may eventually have some type of international instrument. That will be in the distant future, since we are in a discussion phase and have not begun to negotiate, although progress is being made.

    The other matter relates to databases. This goes a little beyond the scope of copyright, since it involves non-original data bases. Case law has given us the example of the yellow pages. A few years ago, the Federal Court of Appeal ruled that the yellow pages were not covered by the Copyright Act because the content was not original. Therefore, we in Canada must decide whether or not we need some type of legal regime to protect these data bases.

Á  (1135)  

    Very little has been done in this area so far. At an international level, these data bases have been protected by the European Union since 1996. In the United States, a number of attempts have been made to protect data bases, but no results have been forthcoming. For years now, the WIPO has been deferring this item on their agenda from one meeting to the next.

    As to possible reactions, if Canada were to move forward on this issue, we would expect the investors in data banks as well as publishers to be in favour of this type of protection. Of course, consumers, archivists, librarians and researchers would be against this type of protection.

    Performers' rights often come into play when dealing with performances that are used in audiovisual works. So far, we have given a great deal of attention to protecting the performers whose works are embedded in sound recordings. In this case we are dealing with audiovisual works. The act gives performers of audiovisual works the right to authorize the use of their work in a film, but as soon as this authorization is granted, they no longer have any rights other than those that have been spelled out in the contracts. Audiovisual performers would like to have rights similar to those that are given to sound recording artists. In fact, they would like to have all of the rights that are included in the WPPT apply to them as well. Performers feel that the digital context has disrupted the business models and believe that legislative amendments should be made to the act in order to afford them better protection.

    As to possible reactions, of course, performers would be very much in favour of such added protection. As to negative reactions, we can expect that film producers and broadcasters would have problems dealing with another level of protection.

    This has been widely debated at the international level as well. In 2000, a diplomatic conference was held to conclude an international treaty to protect their works. As it was a failure, the work, since then, has been extremely erratic, but we know that the World Intellectual Property Organization would like the work to resume. Next November the WIPO will organize a two-day information session to try to move things along.

    The next-to-last point relates to the broadcasting rights. The broadcasters are asking for additional rights to control access to their signals. These would be exclusive rights, similar to those covered by the WPPT. We might expect the broadcasters to be enthusiastic about a treaty such as this one; the telecommunications companies would have an opposing view. In the case of the creators, they have come out against giving broadcasters exclusive rights, but they would be prepared to accept provisions that would allow broadcasters to have some type of legal recourse to prevent the theft of their signals. Negotiations on that point are extremely intense at the international level.

Á  (1140)  

    A number of members, including the European Union, the United States and Japan have submitted proposals to the WIPO, and we expect that next November, negotiations will lead to a proposal to consolidate a text to be used for more advanced negotiations on a treaty to protect broadcast signals. There are a number of things happening at the international level, and here in Canada, we are monitoring and participating very closely in these negotiations.

    As to the last point, namely clarification an simplification of the act, I would simply like to ask you the following question: Do you think that the act is easy to understand? I wouldn't be surprised if you said that it is not. With that in mind, I would like you to know that this concern is shared by all of those who work in the field of copyright legislation. We are trying to come up with amendments to simplify the act, but we are not there yet.

    On that note, I would like to thank you, Mr. Chairman.

[English]

    Mr. Bruce Stockfish: Merci, Danielle.

    By way of summary, before we turn to your questions, I would just turn you to page 16, where we indicate what the departments' next steps are.

    Of course, we are working on the short-term agenda, but just to close the loop on the other issues, clearly the issues that Danielle has gone over are only a part of the work that we do. You can see that it's quite a basket of issues we're working on, and it's for this reason we've tried to package the issues into a manageable reform agenda and reform process.

    These issues are all drawn from chapter 2 of the section 92 report. Even the issues in chapter 2 are not exhaustive. You'll recognize that there are many issues of concern to many stakeholders. These are important issues, and I want to emphasize that even for the medium- and long-term, we are working on these issues.

    As Danielle mentioned, there's been extensive work at the international level with regard to broadcasters, traditional knowledge, database, performers' rights. There's a meeting at the World Intellectual Program Organization next month to deal with some of these issues. Obviously, we're doing a lot of the work in preparation for that.

    Similarly, we're waiting for a decision from the Copyright Board with regard to private copying tariffs. We expect that in the very near future. Clearly we have work in that regard as well.

    All of this is to say that when we talk about short-, medium-, and long-term agendas, this is our proposed legislative agenda. We are working on all of these issues with a view to being ready to meet that agenda.

    That brings us back to the issues that Susan Bincoletto referred to the other day, the short-term issues, what we're actively working on now, towards a bill. I can indicate that we are, and have been, doing considerable work. We continue to do work. We are waiting for legal opinions on various issues, but we continue to do policy work. We're doing comparative work, on how other countries have treated these issues, and we have further consultations to undertake.

    Obviously, a lot of work has been undertaken. As I mentioned the other day, we have conducted consultations on some of the issues. Other issues remain. This work we'll be doing while you're doing your work over the coming year. In a sense, we're complementing our work, but the parallel effort presents challenges for us both as well--something else to manage.

    This gives me the opportunity to elaborate on a question that was raised by Mr. Bonwick the other day. Perhaps my answer was a little too long-winded, so allow me to attempt to be a little more succinct and precise in terms of just where we are now and where we intend to go, the question being, when does the government intend to introduce a bill to deal with the WIPO treaties issues?

    The short answer, Mr. Chairman, is that if all goes well, we hope to be in a position to introduce a bill sometime later next year, in 2004. This bill would address all of the issues we've identified in the short term, which is to say the WIPO treaties issues, but additional issues, based on the consultations on that digital issues consultation paper that was released in 2001, have been added to the mix. These are access issues, educational and library access issues, photographers' ownership issues, and the issue with regard to unpublished works that currently finds itself in Bill C-36 as well.

    This agenda is consistent with the timeline we identified in the section 92 report. As you see on page 10, we've identified the short term as being one to two years. That, in effect, is the timetable we've set for ourselves.

    As I mentioned, we're working on all these issues. Some are readier than others, and much work remains. In order to achieve that timetable, we hope to be in a position to develop positions that we can take to cabinet sometime in the first part of 2004. And then we hope to be in a position to turn it over to our Department of Justice legislative drafters to actually put together the bill. Our lawyers tell us that with copyright being as complicated as it is, and the legislative drafting process being what it is, that will take some time. So at the very earliest, we would be in a position to have a bill ready to table in Parliament sometime late next year.

    Again, though, I caution you, this is assuming that all goes well. A number of variables in our policy development environment are out of our control. We will be conducting further consultations. We will be conducting further policy and legal analysis. We need to take that into account and deal with developments as they arise.

    As I mentioned, we need to work with you, in your work, pursuant to this review under section 92. We need to take into account what you've heard, and we presume you'll be taking into account the ongoing work that we're doing.

Á  (1145)  

    There's also the political context, of course. Both of our ministers have indicated that this next copyright bill is a high priority. We are moving as quickly as possible, but again, we don't know what the priorities of the next government will be. On the assumption that the priorities remain, we will be in a position to advance, but we need to take that into account as well.

    Assuming a best-case scenario, then, that in effect is the timetable we're working on, but we need to take into account all of these developments.

    Mr. Chairman, that concludes our presentation. We'd be happy to take questions on any of the matters we raised or other issues of interest.

    The Vice-Chair (Mr. Jim Abbott): Good. Thank you very much.

    I've made the executive decision to change our way of asking questions. Hopefully this will facilitate things.

    I've had requests from Ms. Allard, Mr. Bonwick, and Ms. Frulla for questions, and I'm wide open to everyone else. We'll go in order.

    If it's possible for the questions and answers to be completed within five minutes each, that would facilitate things. After everyone has had one round, I'd like to have a five-minute segment as well, if I may.

    Ms. Allard.

[Translation]

    Ms. Carole-Marie Allard (Laval East, Lib.): Mr. Chairman, I would like to congratulate the department representatives. They have worked very hard. They have managed to be brief while giving us a complete picture of the main issues. I commend you and thank you.

    You seem to be telling us that these are long term issues. On page 14, you state that the United States has already ratified the treaty.

    Could the fact that we have not yet done so mean that we might have to push through some type of legislation to avoid a regulatory gap that might cause some problem with the United States? Is this not the type of thing that we should be concentrating on in order to avoid that type of problem?

    How would you respond, Ms. Bouvet?

Á  (1150)  

    Ms. Danielle Bouvet: Thank you for your question.

    I would first like to state that I believe we have an act that applies to the digital context. With respect to the authors of original works, very few amendments will be required to bring us in line with the WCT.

    The experts are all unanimous. They feel that the amendments will be minor in nature, so I can tell you that the act already applies when it comes to the digital context.

    With respect to the producers of sound recordings and the artists, the government has already recognized the need to amend the act. As I said before, the act already applies to them, but more substantial amendments will have to be made. Producers and artists still have a certain number of rights and remedies available to them.

    Let us compare the present act to the American legislation. The American act has been successful in a number of areas, but its implementation is still in the early stages, and despite the ratification of the two treaties, piracy is still widespread in the United States. The law in the United States, of course, includes a broader range of rights than the Canadian act, but the phenomenon remains, and piracy is still a big problem both in the United States as well as in Canada. Some of the producers and artists' rights that we protect here in Canada are not covered by legislation in the United States.

    When we amended the act in  1997, neighbouring rights were granted to producers and artists, and these rights are non existent in the United States. For that reason, I would say that there is a gap. We intend to bridge that gap, but we can say that our act already applies to the digital context.

    Ms. Carole-Marie Allard: Mr. Chairman, I would then assume that the regulatory gaps will not have any detrimental effect on us.

    Let us deal with the Canadian situation. There were a few surprises in a recent bill to merge the National Library and the National Archives. We discovered that some of the clauses involved copyright. Can you tell us if these were legitimate surprises? How must they be interpreted? Do you think there is a pressing need to reform our copyright legislation?

    Mr. Bruce Stockfish: Ms. Allard, I am not sure if the surprises were related to copyright or to issues raised in committee. We have taken note of your question and will examine it in the short term; in other words, we have stated that section 7 of the Copyright Act is a pressing issue. Even though it does not involve the digital universe, as is the case for most of the other issues, it deserves immediate attention. I am referring, of course, to unpublished works and copyright.

Á  (1155)  

[English]

    Effectively, there was a transitional term of protection, as members of this committee know, for unpublished works. Unpublished works previously had perpetual protection, unlike published works, which were subject to the usual limited term of protection of life plus 50 years. In 1997 the rules were changed to allow for a five-year transitional period for the estates of authors. We're talking about authors who had died more than 50 years ago, and for the estates of those authors whose works would immediately or very soon fall under the public domain, there was a perceived need for a transitional term of protection.

    In 1997 the term of protection for authors who died before 1948 was five years. This was considered by many in that community to be unfair. As a result, the government listened to those concerns, listened to concerns of archivists and researchers as well, and a small group was put together to in fact try to come to a consensus view. Given the time constraints at the end of 2003, in which those works would fall under the public domain, we put them into the short-term group of issues with a view to dealing with that.

    The library and archives bill, Bill C-36, presented an opportunity to deal with that issue in a shorter timeframe. Clearly we're not going to be in a position to deal with our short-term group of issues before the end of this year.

    The library and archives bill dealt with copyright issues in a consequential manner. There were issues of concern to the National Library and National Archives--in terms of their legal deposit, for example--so it was an opportunity for us to deal with related “small a” archival issues and research issues in the context of that same bill. It was considered to be related to the broader archival interests, and for that reason we put it in there, again considering the short-term nature of the issue that we had to deal with.

    Was it a surprise to see it there? Clearly for some it was. Was it controversial? Yes, even more than we expected, certainly because of some of the concerns that were presented. On the other hand, as I would remind members, this was based on a consensus agreement that was reached by key stakeholders, and frankly, that consensus continues. Yes, there will always be concerns raised with copyright issues. This was no exception. But for these reasons the government chose to take this one issue and deal with it in the context of Bill C-36.

    The Vice-Chair (Mr. Jim Abbott): We'll go to Mr. Bonwick.

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

    Just before I move into the two issues I want to deal with, I want to touch on a motion that we were going to deal with last week.

    And I support your executive decision on time allocation with regard to five minutes. I think it makes it much more organized and it provides structure for us. I would suggest that perhaps we ratify that rule on an ongoing basis at the earliest possible convenience, perhaps even at the next meeting, so that we can deal with things in a timely fashion.

    I want to touch on two issues--first, Bill C-36 and the copyright provisions that are contained therein, and second, how the committee addressed back in the spring...or how the committee agreed to deal with the review of the Copyright Act.

    I'll deal with the second one first. In the spring, after getting some briefings, we decided that it was in the best interest...or the committee decided that we would slot these into, for lack of a better description, the three baskets of short-, mid-, and long-term. We understood that the department had been...and I was glad to hear Mr. Stockfish talking about working hard on basket one, that they were advancing on that, and that there was really no need, based on the fact that there had been an exhaustive consultative process over the last six years, for the committee to rehash all that and simply repeat the work the department in many cases had already done.

    So when we looked at separating these things into three baskets, it was my understanding that either the majority of the committee or the entire committee was really supporting the direction of the minister in saying that we want this done in a timely fashion. We became signatories in 1997, and 42 countries have ratified since then. Obviously we're not one of them.

    The minister has delivered speeches and news releases throughout that period of time that this is a priority, and yet we're hearing Mr. Stockfish talk about the best-case scenario being the fall of 2004.

    Without being terribly pessimistic, I think in reality what we're talking about is more likely the spring of 2005 or the fall of 2005, based on the timelines you have set out, if we take into consideration that there may be an election in that period of time, and hence it would be physically impossible for the department to deal with cabinet and the legislative process.

    So I think--I hope--that I speak on behalf of the committee when I say that your answer is unacceptable, that the committee, that the minister, apparently, says we want you talking in terms of weeks, not months. If we can assist in some way by pressuring Justice Canada to work in a more collaborative effort with you to accomplish these things....

    Personally, I find it unacceptable, and I think the committee did in the spring, that we would be looking at ratification as much as nine years after we became signatories.

    And with respect to the consultative process, there's a point where you can spend almost too much time on it, where over a period of six or seven years....

    A voice: [Inaudible—Editor]

  (1200)  

    Mr. Paul Bonwick: Sorry, Mr. Chair, I'm thinking the parliamentary secretary is chairing the meeting.

    The Vice-Chair (Mr. Jim Abbott): The problem is that you're up to four minutes.

    Mr. Paul Bonwick: Good, because my answer is going to be fairly quick.

    Can you, with the direction of this committee and the minister and Parliament, deal with it in timelines of weeks, or are you able to follow those directions if we can help in some way?

    And thank you very much for the interruption on the part of the parliamentary secretary.

    Mr. Bruce Stockfish: I want to emphasize, Mr. Bonwick, that it's not just our minister, Minister Copps, but also Minister Rock who accord the highest priority to this bill, which would deal with the short-term group of issues leading to ratification of the WIPO treaties.

    I can only reiterate that we're in an operating environment and a policy development environment that is not always within our control. And even with those aspects that are within our control, we experience frustrations as well. It's just the nature of the issues we're working on.

    Mr. Paul Bonwick: So can you do it--I'm trying to stay within my time here--in the next few weeks or not?

    Mr. Bruce Stockfish: The short answer is no.

    Mr. Paul Bonwick: Okay, well....

    The Vice-Chair (Mr. Jim Abbott): We're at five minutes precisely.

    Ms. Frulla.

    Ms. Liza Frulla (Verdun—Saint-Henri—Saint-Paul—Pointe Saint-Charles, Lib.): Thank you, Mr. Chairman.

    To pick up on where my colleague left off, if you are saying no, that we can't ratify in the next few weeks even the short-term, then what about the mid-term? What bothers me is that when I look at the mid-term issues, they are so important. If we're talking...and in Paul's timeframe you're saying no. Paul's timeframe is very logical. It could be spring of 2005. So what is going to happen with the mid-term?

    Do you see what I mean? It seems to me that the content of the mid-term is crucial, but that will be delayed until 2006, or 2007...?

    Mr. Bruce Stockfish: As I mentioned, Madam Frulla, we continue to work on all issues that we've identified for legislative attention, including the medium- and long-term. In recognition of the huge workload ahead, my branch has in fact expanded threefold over the last two years; otherwise, we would only have been positioned to deal on a crisis basis with the short-term issues. So we are working on the medium- and long-term issues.

    With regard to collective rights management, for example, we've organized round table meetings with collective societies to address potential legislative solutions and administrative solutions. We are doing background analysis on the ephemeral recording exception, and we're monitoring the private copying regime, as I mentioned.

    We are doing this background work to get us ready for the next bill, which will follow, so that we don't have to spend the frustrating periods of time that many--

  (1205)  

[Translation]

    Ms. Liza Frulla: Given the situation, is it possible that we might have legislation by the end of 2004 or 2005—since you are continuing to work in the medium term issues—that would deal with at least the short term and the medium term? Is that something we could expect?

    Mr. Bruce Stockfish: Everything is possible. In our section 92 report, we decided to organize our work into the short, medium and long terms. We based ourselves on principles and objectives that we laid out in the report. It is possible that the major priority we had identified might change as things go along. The report came out a year ago now and we realized that this is a dynamic environment. We will be reassessing the situation as we go along.

    You and the committee will do what you have been asked to do. As we indicated in our report as well, we would like you to consider this question of priorities.

[English]

    In chapter 3 of our report we specifically ask you for advice on whether we have the right baskets of issues, on whether we have the right sequencing of issues. This is our best take. This is not science, of course, but it's our best take, based on the criteria and considerations, to maintain a manageable copyright reform process. And we'll take into account your views as well, of course.

    Ms. Liza Frulla: Mr. Stockfish, is it possible then to think...and I agree with you that within a normal timeframe this makes a lot of sense--really--but considering

[Translation]

    the further issue of new technologies, collective rights management and the term of protection,

[English]

these are crucial issues. People are saying that in 2005, when we come out with the new law, things will have changed. Les nouvelles technologies go so fast that things will have changed. That's why we're urging you to at least come to us and sort of review the timeframe.

    Now, what bothers me--and this is the same thing that Carole-Marie was saying--is section 7, which means that if we can't do the short-term, and deposit the short-term in a few weeks, then it means that section 7, if it's not ratified now....

    Because it is an injustice. We'll see it ratified in about a year and a half--or two. So what does that mean for that section?

    Mr. Bruce Stockfish: With regard to unpublished works for authors who have died before 1949, those works will fall into the public domain. It will be difficult to address this issue beyond the end of this year.

    Ms. Liza Frulla: But what happens if it falls into the public domain and in two years we're saying, no, there's an injustice? Can we go back?

    Mr. Bruce Stockfish: If we were to go back, we would have to specifically provide for a retroactive recovery of rights, and that will certainly affect certain stakeholders who may have relied on those works already in the public domain. It can be done, but it raises additional complications.

    Ms. Liza Frulla: Thank you, Mr. Stockfish.

    The Vice-Chair (Mr. Jim Abbott): Mr. Lunney.

    Mr. James Lunney (Nanaimo—Alberni, Canadian Alliance): First of all, I should go on record here as objecting to the autocratic behaviour of the chair--

    A voice: It's awful.

  (1210)  

    Mr. James Lunney: --on behalf of the opposition. Certainly if there were other...and Mr. Bonwick affirmed this terrible autocratic decision-making.

    Of course, I say this while recognizing that the issue is very complicated, and for me in particular, as a new member, I think the five-minute questioning we would approve. But we certainly don't want to establish a pattern, as perhaps Mr. Bonwick suggested, for all future discussions for the committee.

    The Vice-Chair (Mr. Jim Abbott): Go for it. You've used up 37 seconds.

    Mr. James Lunney: That's my favourite time period. Everything takes 37 seconds.

    I recognize that it's very complicated work here. You talked about the work you're doing right now--policy work, comparative work on the international scene, consultations, waiting for legal opinions, and this bill, which we more likely will see come forward, if ever, in 2005, after an election. That's optimistic, probably.

    So it's obviously a complicated subject. There's a lot of controversy on the short-term, long-term issues there. Obviously, there are people in the mid-term and long-term who feel they should be prioritized earlier.

    You mentioned that you did address some principles and concerns in your report. Can you outline those for me at this point? What are these principles on which you established these priorities?

    Mr. Bruce Stockfish: The principles and criteria were originally outlined in A Framework for Copyright Reform, which was released by both ministers in June of 2001, and essentially incorporated into the section 92 report. You'll see it referred to in the report. Some of the principles--I'm just reading now from the wording in the report--are “to preserve the integrity of the act”. Is the act really working now in this new environment? An “externally driven time line” will be important. In other words, is there a deadline such as the section 7 issue, which we've just referred to? Have the issues been “thoroughly analysed and consulted on”? Are they ready? Clearly, it's work that we're continuing to do, and some are readier than others. The report also refers to “early opportunities in the marketplace”. There are economic factors at play, and Canada wants to be sure to take advantage of these. And does “consensus exist among stakeholders”? In the area of copyright, that's quite a task. And the international environment is a factor, not just the treaties we're working on and that are driving our agenda, but also international trends and developments from our trading partners.

    All of this we take into account. As I say, it's not a scientific formula, but these are factors that we take into account, keeping in mind the overall effort of the government to retain a manageable reform process. These were the packages that we identified for the short, mid, and long terms. I want to emphasize, though, that these are not cast in stone. To go back to Madam Frulla's point, it is a dynamic environment. We continue to reassess issues. As the environment changes, of course we need to respond to that, and clearly this is your challenge, too. We'll be listening to your views in redefining our own agenda.

    Mr. James Lunney: If some 42 countries have already ratified and presumably made legislative changes, are there not patterns somewhere that address these issues that we can simply adopt in a much more expedient fashion?

    Mr. Bruce Stockfish: This is certainly something that my colleagues could get into at great length, but just let me first address that by saying, yes, indeed, over 40 countries have ratified the treaties, but our major trading partners have been experiencing great difficulty, great challenges, in dealing with these very issues as well.

    It's true that the United States has ratified, but they have been undergoing hearings in the United States, where there has been a lot of opposition, and many are reconsidering the Digital Millennium Copyright Act provisions as well.

    In Europe there is a copyright directive, which has been passed by the commission in Brussels, that must be implemented, in effect, by the various member states. Many are having difficulty with this. The agenda was originally December of 2002, and clearly that deadline has passed without the directive being implemented. So Europe has not found itself in a position to ratify the WIPO treaties. Australia has not ratified the WIPO treaties. New Zealand has not ratified the WIPO treaties.

    Many countries have, it's true, and they are in force. We are on track with a bill that will deal with the WIPO treaties issues and will put us in a position to ratify the WIPO treaties, but we have had much to learn over the years since the WIPO treaties were made in 1996. We continue to have much to learn, and we're trying to respond to that environment as we go along. That's not an excuse for delay--we appreciate the need to act quickly in response to stakeholders' concerns--but there is an environment out there that we need to take into account.

    Mr. James Lunney: Okay.Just one last--

    The Vice-Chair (Mr. Jim Abbott): I'm sorry, Mr. Lunney, you're over your time.

    Chuck.

    Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): Thank you.

    I guess it's one of those issues where there is some pity in the committee, I think, for the wisdom of Solomon you're going to have to have here. Your statement has been consistent that, on the one hand, producers feel this way, and on the other hand.... So you have some sympathy from me on that one.

    You have less sympathy from me...and I've got to tell you--you know my feelings on Bill C-36--that I fear the bill is going to be lost to us, because many of us feel that those copyright provisions were tossed in just because you had to toss them somewhere. We proposed to the minister that we could accept an extension of three years while we got all this done properly and holistically, but just to do it outside of a general review of copyright--we're reluctant to do that.

    I think that bill runs the risk of not passing at all, which is a shame, because we've now tied up the library and the archives into the mess of copyright. Copyright is such a dog's breakfast that it's too bad they've been caught up in that. I'll just leave it at that.

    On the overall strategy you're going to develop on legislative process, whether it's approval of WIPO treaties or otherwise, I would just encourage you to try to give us the feeling in this legislation that it's not an omnibus.... Don't give us all something to protest on, give us something to agree on. I have a fear that we're going to end up with legislation that everyone will find something in it to protest and we'll just be on this until the 39th Parliament.

    That's just some general advice. I don't know if that's even possible.

    I guess I share everyone else's concerns on the length of time it takes to bring legislation forward to give Canada some sort of endorsation of our signatory to these international treaties. I wonder if it wouldn't be better for us--and we have to go through this review of this copyright law--if you gave us a draft bill rather than to talk about it in general. Because what I feel is happening is that we're going to talk to all the people you've already talked to, and they're going to say, well, I can tell you, I've already talked to the departments, and they're drafting something up. And while we're sitting here saying, “Let's get to the bottom of it”, you're already drafting what you've heard from the same witnesses, likely. So we're sitting here spending endless months of...not useless, but counterproductive time.

    Wouldn't it be better, even if it's not perfect, for you to draft us a bill, get the minister to refer it before second reading so that it's in the draft form, and nobody has to get hurt feelings when we propose changes? Then at least we're reviewing something tangible as opposed to this theoretical moving-goalpost stuff, which I fear that, especially with the election in the middle, we're going to end up with.

  (1215)  

    Mr. Bruce Stockfish: We of course appreciate those concerns. In fact, these were some of the matters we spoke to you about in the spring, on how best we can complement each other's work. Clearly, we're on track to develop legislation, and at the same time there's this need to review the Copyright Act as a whole, based on our report.

    So I can only repeat, we're on track to develop that bill, but we're not in a position to present something tangible on those issues for the committee to consider at this time. There may be other issues the committee could look at, profitably, which would complement our work as well. That's really at your discretion.

    Mr. Chuck Strahl: But the problem is, you see, we don't know what that is. We could do all kinds of work that might complement what you're doing. It might be counterproductive, it might be on the same track, or it might be duplicating. We don't know what that is. And I think the problem is that we don't know what direction you're really going. I mean, even the Bill C-36 little...you know, “Throw that in, and hope you guys can deal with it” is a surprise, as Madam Allard has already said. It came as a surprise. I didn't realize that was necessary, especially in this bill, and it's become controversial where it shouldn't have been.

    I think we need something in a draft form that we can sink our teeth into. We could pour a month's work into it, and you could be off in a building somewhere in Ottawa, saying, “What a waste of time. We've already decided that. That's in our draft already.” And we wouldn't even know it.

    Boy, that's frustrating, especially with this election in the middle of it. As Paul said, we're trying to focus on the concept of weeks rather than years, because we probably have only weeks of legislative time in which we can help you or hinder you, and I've a fear that we're going to do the latter.

    The Vice-Chair (Mr. Jim Abbott): Mr. Shepherd and Mr. Schellenberger, you can ask questions if you like. If not, I'll take five minutes, if that's okay. Then we'll circle back.

    I'll use up the first part of my five minutes, taking my chair's hat off, by telling the committee that I wrote to the minister about 10 days ago, suggesting that it would be good if she were to engage herself in the passage of Bill C-36. I think there is some goodwill on the part of the opposition parties, and I know there is some goodwill on the part of backbenchers on the Liberal side, but we need some kind of interest in getting this bill passed on the part of the minister.

    I've invited her to engage in discussions with Mr. Strahl, who is the official opposition's lead hand on handling Bill C-36. We can only hope that the minister will choose to engage herself in the passage, in getting that bill through the House.

    My question, though, is on the private copying regime. In order for the department to be able to make any good decisions, you must have, I would suspect, some ideas, if not precise numbers, on the following questions.

    How much money has been collected in the period of time from which it came into effect? How much money has been distributed? Of the balance, how much money has gone to administration costs, which would then leave us the remaining balance, the funds for distribution?

  (1220)  

    Mr. Bruce Stockfish: I have some general ideas on that, but before I commit myself on record, will you give me a moment to consult my colleagues?

    The Vice-Chair (Mr. Jim Abbott): Sure--as long as my time clock stops.

    Some hon. members: Oh, oh!

    Mr. Bruce Stockfish: In terms of revenues from the levy collected since approximately 2000, last year approximately $28 million was collected by the Canadian private copying collectives on behalf of its member collectives. Earlier this year, $7 million was distributed to members. And of course they're working on the administration requirements necessary to distribute the remaining money.

    The Vice-Chair (Mr. Jim Abbott): But that's only 25% of the money distributed. How much money is going to the administration costs?

    Mr. Bruce Stockfish: We're told it's consistent with the industry norm, which is 5% to 10% of costs, administration costs.

    The Vice-Chair (Mr. Jim Abbott): I think SOCAN is significantly higher than 5% to 10%.

    Mr. Bruce Stockfish: That's the information I have.

    The Vice-Chair (Mr. Jim Abbott): These are numbers that, before we can seriously take a look at that, we should have a good handle on.

    With the U.S 1999 ratification, and the whole issue of protection versus access, what I'm having difficulty understanding is that we, as legislators in Canada, have to come up with domestic legislation to comply with the terms of the international treaties. I guess my question is, how do we fine-tune that? In other words, if we are going to correct the imbalance created in the United States, how far can we go? Are we not constrained by the terms and conditions of the international treaties? How much elbow room do we actually have?

    Mr. Bruce Stockfish: Let me answer your questions in general terms, and if my colleagues can elaborate, I would welcome that.

    Let me give you a flavour for some of the issues we're addressing in the WIPO treaties.

    Technological protection measures, one of the issues we're dealing with, is perhaps a good example of the kinds of concerns being raised on both sides. The concern on the part of rights holders is that there has been a loss of control, and of course, copyright is about exclusive rights. It's about control. Rights holders have the ability to control use of their works, certain uses of their works, and implicit in that is the ability to be remunerated for it.

    In the digital environment, in the Internet environment, arguably there has been a loss of control. Technological protection measures, or at least legal protection for the technical measures, which rights holders want to take to maintain control, is about retaining that control. The concern is that there will be a complete loss of control without some support such as that.

    The other extreme is the concern that technical protection measures, and legal protections for them, will allow for control to be complete, to be absolute. And of course copyright is about many exceptions, too, about many legitimate uses, works even that have fallen in the public domain. So there are many others out there in the broad user community who are concerned that there could be a complete control, going beyond the tradition balance of control versus access that we have seen in copyright.

    It is a very dynamic environment, and we are listening to the concerns on both sides. Clearly the WIPO treaties exist, and technological protection measures are called for. We're working on developing measures that will allow for that issue and other issues to be dealt with in as balanced a way as possible, taking into account the concerns of stakeholders and the technological and legal environment that we're working in. To be frank, the environment has been changing since 1996, and we are in a constant state of assessment.

  (1225)  

    The Vice-Chair (Mr. Jim Abbott): Mr. Bonwick.

    Mr. Paul Bonwick: I have an interesting concept here, going back to what Mr. Stockfish and Mr. Strahl were talking about in terms of the potential for the committee to complement your work. Now I might propose that perhaps the department complement ours.

    I find it causes me great concern that a government, a minister of the Crown, a country becomes a signatory to something in 1997, and through two successive terms we can't get to the point where we're ratifying this thing. The precedents have been set by other countries. Rather than, as Bruce did, name the four or five or eight that haven't, name the 42 that have. That's a striking number.

    When we talk about timelines, I find it disturbing, if we refer to Bill C-36, that if the department determines that something needs to pass very quickly, they can find an avenue to do so--namely, the library and archives act--but when they do not see the ability to do it, they lose those accesses. I am suggesting that I cannot be convinced that the department cannot come up with draft legislation by January or February of this coming year to deal with pile one--WIPO ratification.

    Quite frankly, I find it unacceptable that we would be expected to deal with three terms of government before the department can have draft legislation in front of a committee. I would suggest that the department is not taking the direction of the minister, or the direction of Parliament, if they can't do it within two terms of office.

    So I'm saying to you that this committee spoke loud and clear in the spring, and they are speaking loud and clear now. They are telling you that we want to see some draft legislation in this coming year, early. And that's about as far as I can go.

    The last thing I would simply comment on, in the form of a response, is that the relationship between this committee and the department is critically important. We have to have a lot of trust in what you're doing, and respectfully, you have to have it for us.

    To go to Bill C-36, we felt that it was brought in as a surprise, without the committee knowing, in fairly short stead. When there was an apparent agreement to have that removed, and rather than deal with it in the spring, deal with it in the fall, did the department have some role to play in bringing it back in the spring, when in fact the House had adjourned and basically a new committee was sitting to deal with that after the House had risen for the summer? Did the department have any role in seeing that reintroduced into Bill C-36 when in fact there was an agreement to have it removed?

    Mr. Bruce Stockfish: To give you a very short, succinct answer, Mr. Bonwick, no, we had no role whatsoever. This was a matter that was in the hands of this committee.

    Mr. Paul Bonwick: Okay, thank you.

    Ms. Carole-Marie Allard: Mr. President, I think I'll try to say this in English.

    Actually, you were accused by Mr. Strahl of having created a melting pot by including these articles in Bill C-36. But if we look at your documents, these documents show what was in your report two years ago, and it's clearly there: unpublished works were in the short term. There are no new things. We knew we had to deal with this article included in Bill C-36; it was there--short-term, unpublished works--two years ago in a report.

    So when you say to these people today that they've done that in the back door, I think you admit that we are facing a mastodon when we talk about the huge basket for copyrights.

    I'd rather hear, Mr. Strahl...and Mr. Stockfish, when he said that an injustice was created, because this was too short a transition period when we adopted the law in 1997. The fact is that for an estate of an author who died in 1949, your works are protected until 2047. And for an estate where the author died in 1948, one year before, your work is protected until 2003. This is the injustice. This is why we had to put it somewhere, because the end of the protection is coming at the end of this year.

    When I realized that there was no way to deal with the opposition, I proposed that these copyrights...but I don't want to go back to that.

    I think, Mr. Strahl, we have to face the reality here. The department is not taking us by surprise. It is said in there, and it was said two years ago. They tried to find the best way to give this protection to the people who died one year...at the wrong time, I would say, but I don't know if that's clear.

  (1230)  

    Mr. Chuck Strahl: There's never a good time to die.

[Translation]

    Ms. Carole-Marie Allard: We realize today that works created by people who died in 1948 are protected until 2003, and those of people who died in 1949 are protected until 2047.

[English]

    I understand why we had to deal with this issue. There is an injustice, and that's what Mr. Stockfish said. I think we should open our minds here and try to work it out, this bill, and not delay this merger of the library and the archives.

    Thank you.

    The Vice-Chair (Mr. Jim Abbott): In fairness, I think Mr. Strahl should be given the same period of time, but I think also in fairness to the witnesses, we should be getting back to that.

    I think in fairness, Mr. Strahl should be given an opportunity.

    Ms. Carole-Marie Allard: I didn't ask my question yet.

    The Vice-Chair (Mr. Jim Abbott): You have two minutes left to ask your question, but as I say, in fairness, I want to give Mr. Strahl an opportunity to make a comment.

    Ms. Carole-Marie Allard: Mr. Stockfish, was there another way to do something on such short notice?

    Mr. Bruce Stockfish: Madam Allard, the evidence is there, in a sense. We identified the section 7 issue as part of our short-term issues, in light of the fact that the five-year period for transitional protection of unpublished works would expire at the end of this year. As I say, the evidence is there.

    When that report was prepared, we had hoped, if not expected, that we would have a bill passed before the end of this year. It became clear, for the variety of reasons that I've explained to you, that this is not going to happen. This was clear earlier this year. It was for that reason, taking into account the fact that we had a bill dealing with related copyright matters, and taking into account the time urgency of this particular issue, that we agreed to put this in.

    It was relatively narrow on the face of it, a consensus-based issue. Clearly there were problems, as with any copyright issue where there are different interests at stake, but it was felt that this was an appropriate vehicle to have this issue dealt with in a timely manner.

    The Vice-Chair (Mr. Jim Abbott): I'd like to go to Mr. Strahl.

    Mr. Chuck Strahl: I've already offered to the minister, why don't we extend this transitional period to allow us to deal with it? I think that's the proper way to deal with it.

    I mean, I'm not disputing that this is a short-term issue. I know you've brought this forward as a...but I'm disputing how it's been brought forward. It's been tucked into a bill that puts together the library and the archives. When you put together the library and the archives, you're going to have a five-minute bill in the House of Commons and a ten-minute bill here in this committee. There is no argument about that. It's time to move ahead. It's time to give those guys what they need. It's time to put it in, and put it to rest, and put it through Parliament like a sausage. The problem comes when you add stuff in that is controversial. When that happens, you run the risk of kiboshing the entire bill, and that's exactly what's happening.

    Now, if you can't understand the difference there, Madam Allard, then you don't understand the parliamentary process. We give quick and easy assent to quick and obvious things. Putting the archives and the library together is quick, obvious--a slam dunk. On the other one, I have offered an alternative way out of it. Extend it for a couple of years. It's a five-year transition period, but it is beyond me why, as Paul has said, after five years we don't have a legislative option that includes this. But if we don't, for whatever reason, then put another two-year extension on it. We'll put it through like a sausage. Again, there will be no debate. We'll get it through and we'll get it passed.

    So to say to committee members that you have to do whatever is in the bill, because it just happens to be a gathering pot to get stuff through, is to invite problems. As I mentioned earlier, it will invite problems down the road if we don't get that straight as well. Let's try to put things together that make sense as far as a coherent package. As in our suggested questions here, let's be careful not to put things in one bill that will have to be fixed five years down the road, and so on.

    It is a recipe for disaster, legislatively. The House leader will not bring this back, because he knows it's a waste of time and it's ticked him off. We had an agreement in this committee. We won't get into that, but we understood how stupid it was, and we tried to fix it. The committee didn't agree to it, and now we're stuck in this thing. If we're not going to give the library and the archives what they deserve and what they need--I'm now just about at the end of my rant--it's a shame, and it's because we've handled it poorly legislatively.

    I'm not a witness, and I wouldn't want to respond to that, and I don't even need a response other than, yes, I'm ready to go. Let's get this done. Let's give the copyright protection the extension that we need, in a small period of time, so that collectively and holistically we can look at all of the copyright issues within the next, say, couple of years. I'm with Paul and many others who say that this has dragged on for so damn long, none of us can have any sympathy for the department or the officials, because it just seems to take forever.

    That's why I say, out of the goodness of our hearts, let's give them a couple more years to come up with the whole package, but I'm not prepared to just say, for this little group here, we'll fix your problem, but for the other guys over there, sorry, you've waited nine years and it looks like there are nine more coming.

    I'm not prepared to do that, and that's why I've offered a solution out, that will protect these things, extend it, and look after the library and archives. That's not unreasonable. The minister should engage in this and let that happen. We can do it in 15 minutes.

  (1235)  

    Ms. Carole-Marie Allard: Monsieur Président, I have a question of information.

    Is it possible that we would still be discussing this reform by 2017? Because this is the end of the protection we're giving to these people who died in 1948.

    The Vice-Chair (Mr. Jim Abbott): I'm just concerned about us getting sidetracked onto Bill C-36. I mean, we're there, so let's leave Bill C-36 for discussion in the hallway.

    Are there any--

    Ms. Liza Frulla: No, I want to talk about it. I have a question I want to ask.

    The Vice-Chair (Mr. Jim Abbott): Just a second.

    Are there questions--other than those relating to Bill C-36--that members want to ask right now?

    Ms. Liza Frulla: Yes.

    I don't want to be dogmatic about this, but I would feel extremely, extremely uncomfortable as a parliamentarian not to ratify Bill C-36...as Chuck and Paul and all of us.

    There was a consensus for some and not for others. It was a cafouillage, let's face it. I would feel extremely uncomfortable, as a parliamentarian, to, I would say, ratify...if not ratify Bill C-36, go ahead with what I feel is an injustice.

    What Chuck is bringing up--and I know that Paul brought it up also--is whether it is possible to say that we will keep the protection for the three or four years and extend it, to find a solution, because we're killing a good bill because members...I don't, but I respect that there are members that are not comfortable. I would have preferred dealing with it, but we know that we will not ratify short-term in December the way you're talking.

    So I just want to know, is it possible to protect those people from the injustice? We are living something right now in terms of the oeuvres of Jacques Brel, a great Belgian singer. His unpublished work was not protected, and now you can buy it in every record store. It's a big issue. I don't think that it's fair for the author, because if he didn't want it published, he obviously had a reason for it. But he wasn't protected.

    Coming back to what Chuck is saying, in order for us to feel comfortable as parliamentarians, to ratify Bill C-36 and to make sure that there is no injustice for those who died in 1947, is it possible to extend it to the date or the period that we will ratify the short-term here? Is that possible?

  (1240)  

    Mr. Bruce Stockfish: There are plainly discussions under way now, as Mr. Strahl has indicated, in terms of whether we can have an extension to the transitional period that would in fact allow us to deal with the issue as we anticipated it would be dealt with in the short-term issues. Clearly, if the bill, as is, is not acceptable for reasons of what is in it or how it was dealt with, then we can make an amendment that would allow us to continue to deal with the issue by extending the five-year transitional period.

    Ms. Liza Frulla: So then there will be a committee--

    The Vice-Chair (Mr. Jim Abbott): Okay.

    I'd like to provide what I believe is a point of information on the word “discussion”. There has been discussion among the backbenchers. The parliamentary secretary has also been involved in some of these discussions, along with the opposition parties. The difficulty is that this is the level of discussion at this point. There is no expressed will on the part of the minister. She is absolutely absent from this discussion. As a consequence, the discussion is not happening. What has to happen, in order to meet the November 7 deadline, is that there must be an agreement, and the minister must engage herself. Following that, the justice department would then have to be able to write, in the proper legal words, what the amendment would be that would mean that we could come to this compromise.

    I am told personally by the House leader of the government that time has virtually run out. It's virtually over. It's never over until it's over, but we are as close to it being over as we can get. It's a responsibility not of the members of Parliament but of the minister herself.

    Mr. Lunney.

    Mr. James Lunney: Mr. Chairman, I will withdraw my questions in order to allow other committee members to continue with more germane questioning.

    The Vice-Chair (Mr. Jim Abbott): Okay.

    Chuck.

    Mr. Chuck Strahl: You mentioned the political reality that we face, which is likely an election. You've probably followed the leadership debates and so on in the Liberal Party. Has anything been stated in those ongoing statements, now by, I guess, pretty well just Paul Martin and Ms. Copps, that would affect fundamentally what you're working on? No promises made, no suggestions from the stump speeches and so on, that you've picked up?

    Mr. Bruce Stockfish: No, nothing at all that I am aware of.

    Mr. Chuck Strahl: Okay, thank you.

    The Vice-Chair (Mr. Jim Abbott): Mr. Bonwick.

    Mr. Paul Bonwick: From my end you've obviously heard a level of frustration from not becoming signatories, and the desire of the committee to see the department work, obviously collaboratively with others, to get this thing in front of us as quickly as possible. There is a window of opportunity. The window of opportunity is arguably the fourth week in January and throughout February, when the committee will be sitting.

    Does the committee have the right to ask you to present a timeline of when in fact you can present something to us? Do we have that authority? Do we have the authority to say that we want you, within the next two weeks, to present a timeline based on what the committee is stating, not with the rationale that you've already presented?

    I guess I would go to either the clerk or Mr. Stockfish.

  (1245)  

    Mr. Bruce Stockfish: In a sense, I have given you the best timeline from the officials' perspective. We respond to our ministers. Clearly they place a high priority on this, as do you, and we are working as diligently as we can on it. But the timeline that we set for ourselves is as I have explained to you. If ministers demand that we produce something sooner, we will advise them, and give them our best advice on what can be done, but we will respond to those wishes.

    For all the reasons I've given you--the operating environment, Department of Justice drafting, ongoing consultations--we still have much work ahead, and therefore much time ahead of us. Obviously, however, we'll listen to the views you have very clearly put to us, and we'll do what we can.

    Mr. Paul Bonwick: To the clerk, I am interested in the authority the committee has in this respect.

    The Clerk of the Committee: We may have a motion, adopted by the committee, asking the department to give some response on that, but we need full quorum to adopt it.

    Mr. Paul Bonwick: Which is fine, with 48 hours' notice as well. I will do that.

    The Clerk: As well, if the department is ready to give us some information, we could have the motion. There is also that option.

    The Vice-Chair (Mr. Jim Abbott): Because of the timeline of November 7, I can suggest that it would have to be by unanimous consent for a motion to be accepted right now. But if there were unanimous consent for a motion....

    I believe we have sufficient members here?

    The Clerk: We don't.

    The Vice-Chair (Mr. Jim Abbott): We don't? Too bad. That's the end of that idea.

    Mr. Paul Bonwick: [Inaudible—Editor]...afternoon, for Thursday.

    The Vice-Chair (Mr. Jim Abbott): Okay.

[Translation]

    Ms. Carole-Marie Allard: Mr. Stockfish and Ms. Bouvet, I would really like to clarify the situation.

    During your presentation, you did not indicate any preference as to which priorities should be addressed. Could you give us one issue that we could consider to be a priority? I do not know whether this is true, but I have been told that the Internet has resulted in a legal void in Canada right now. Apparently, because we do not have any laws regulating the Internet, foreign companies that come here could cause us problems. Correct me if I am wrong.

    When it comes down to it, would the whole issue of the Internet not be what we should deal with first?

    Mr. Bruce Stockfish: In my opinion, Madam, it is really up to the members of your committee to decide that. We have described the work that we have been doing on short-term issues. Obviously, a lot of work remains to be done on medium term and long term issues. As Ms. Bouvet has explained, there are still many questions and issues to be resolved. We have a lot of work to get through. Ultimately, the members of the committee could work on this. Nonetheless, it is for you to determine your own priorities.

[English]

    The Vice-Chair (Mr. Jim Abbott): Thank you, witnesses. This has been a lot livelier than I had anticipated, but probably it's healthy for the process.

    The meeting is now closed.