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37th PARLIAMENT, 2nd SESSION
Standing Committee on Canadian Heritage
Tuesday, October 7, 2003
|The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.))|
|Mr. Bruce Stockfish (Director General, Copyright Policy, Department of Canadian Heritage)|
|Mr. Bruce Stockfish|
|Mr. Bruce Stockfish|
|Mr. Bruce Stockfish|
|Mr. Bruce Stockfish|
|Mr. Jim Abbott (Kootenay—Columbia)|
|Mr. Paul Bonwick (Simcoe—Grey)|
|Mr. Jim Abbott|
|Mr. Bruce Stockfish|
Standing Committee on Canadian Heritage
Tuesday, October 7, 2003
[Recorded by Electronic Apparatus]
The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I call to order this meeting of the Standing Committee on Canadian Heritage.
The Standing Committee on Canadian Heritage is meeting today to hear testimony from the following Heritage Canada officials:
Mr. Bruce Stockfish, director General; Madame Danielle Bouvet, director of copyright policy on behalf of the Department of Canadian Heritage;
and from Industry Canada, Mr. Albert Cloutier, Senior Project Leader.
and Ms. Susan Bincoletto, director of intellectual property policy.
We will have a vote at around 11:28--the clerk is going to check the exact time--so we'll have to break in about 15 minutes. We'll let you know exactly when.
We don't have quorum for future business because most members have gone to the House for the vote, but we'll have enough members to start hearing from you.
Go ahead, Mr. Stockfish.
Mr. Bruce Stockfish (Director General, Copyright Policy, Department of Canadian Heritage): Thank you, Mr. Chairman.
You made the introductions, so I won't introduce my colleagues except to note that our colleague from Industry Canada, Marie-Josée Thivierge, was unfortunately not able to make it.
This is an opportunity to also make the point that copyright policy responsibility, as many of you know, is a joint responsibility of both Canadian Heritage and Industry Canada. For that reason, officials from both departments are with us today. I also want to emphasize that in preparation for this meeting there was a collaborative effort of officials from both departments.
I will be making the presentation this morning, but of course my knowledge is very general, very limited. I rely, as do my colleagues at Industry Canada, on the many experts we have at the table and behind us. Certainly, if you have any questions, if I can't answer them I'd be happy to bring the experts to the table.
We are here today, and we're scheduled here for Thursday as well--
The Chair: Excuse me, but I just heard that the vote will take place in 20 minutes, at 11:30, so we'll break at 11:20.
Mr. Bruce Stockfish: Thank you.
Today our intention is to make a presentation to you that will address the principles, the underlying copyrights, the law, of course, the environment in which copyright operates, the various players, and the international situation. Basically what we have in mind is a bit of a “Copyright 101” presentation to give you the foundation or the basis on which to proceed with the hearings pursuant to section 92 of the Copyright Act.
Our understanding is that on Thursday you would like us to get into some of the issues underlying the Copyright Act, the reform process, the status of the government's work on the short-term issues we've identified in the section 92 report. We can indicate the stakeholder positions and of course address many of your questions.
By way of introduction, let me explain something that perhaps goes without saying: Copyright is not an easy subject. The issues are complex. The act as a whole is complicated, with many rights and many exceptions. It's a very legalistic area. It's very international. There are many players, many interested parties, in the area of copyright, and many of the positions they take are polarized.
We deal with all of the cultural industries, and of course you do as well. Each sector has its own distinct stakeholders with regard to the film industry or publishing or sound recording or visual arts, and even some of the non-cultural sectors. All of these are also copyright stakeholders, and we deal with them all.
We have our own specific stakeholders that are targeted to copyright interests. Of course, those are the collective societies, which we'll speak more about in the presentation.
And we shouldn't forget the users, the institutional users, libraries, museums, even broadcasters, or some hybrid interest--broadcasters, for example, are both users and owners of copyright--and the public at large. More and more we're seeing that we're all consumers of works that rely on copyright. You will hear from them all.
If this sounds a bit daunting, we think it's also an exciting time to be dealing with copyright. We're dealing with the challenges of copyright, but in our case we're dealing with interests that affect both cultural policy and economic policy. The industries that are associated with the cultural sector very much rely on copyright as a market framework policy for their economic viability.
Copyright is really a cutting-edge area. It's linked with ongoing developments in communications technology. Copyright is in the press on a daily basis. It's in the courts. The Supreme Court of Canada has recently heard, and will be hearing, many high-profile cases in the area of copyright. The Théberge decision from last year was a fundamental decision dealing with reproduction rights. The Supreme Court will be hearing this fall the Law Society of Upper Canada case, which will be a key case dealing with the key concept of originality in copyright and one of the key exceptions to do with fair dealing. The Supreme Court of Canada will also be dealing with the “tariff 22” case, which will be an essential case dealing with communication by the Internet.
All of this will be going on as we conduct our work as policy-makers and you conduct your work under the section 92 review.
You'll hear from stakeholders on a variety of issues. You'll hear many perspectives. On Thursday we will give you our perspectives on the issues in general and the issues we're dealing with and why we're dealing with them. Today our purpose is to give you a bit of a background on copyright in general.
We have a deck, and it's been distributed to you in both languages. I will be speaking to it. Forgive me if it's a bit lecture-like. I appreciate the time constraints. It is a bit detailed in places, and I will be skipping over some things, but I think it's a good resource for you to use in getting a little bit up to speed on copyright issues, along with other resources. In that regard, I would remind you that the section 92 report is itself a resource that we rely on. And of course you have your very capable staffers to give you assistance as well.
In that regard, the section 92 report in a sense guides us as we make our presentation this morning. Today in a very real way we'll be talking about the introductory aspects of chapter 1, and on Thursday we'll be certainly addressing our proposed reform process set out in chapter 3 and some of the issues that were discussed in chapter 2. Of course, if you have questions at any time, I or my colleagues will attempt to deal with them.
Unless there are questions right now, I'll turn to the deck we've prepared and distributed, jumping immediately to page 5, where we talk about the principles underlying copyright.
I suppose the first question that should be asked is, what is copyright? Copyright is intellectual property. It's not like physical property. It's really a basket of rights that have been granted to creators of intellectual works and that give them control over those works and an opportunity to be remunerated for those works. It is not like the ownership of a book. A book can be transferred, in its physical form, from person to person, but the copyright in the book, the intellectual property in the book, stays with the creator or subsequent owner of copyright.
There are two aspects to copyright that govern our work as policy-makers and your work as legislators--the aspect of control and remuneration for rights holders but also the aspect of access, legitimate access, and dissemination of works for users in general. It is this balance that we constantly strive to achieve in developing copyright policy.
As a matter of almost theoretical background, there are really two approaches that underlie our own Copyright Act and two approaches that have been taken to copyright in the world. The first is what has been called the “Anglo-American” approach to copyright as opposed to the European “droit d'auteur” approach. The first can be considered to be a bit more of a utilitarian, economic-oriented approach that recognizes the economic contribution of creators. It's a recognition too of the contribution that creators make to the cultural industries. The European approach is more of an authors-based approach. It's a recognition that there's something inherent in the creations of authors that should be recognized by the law.
But I don't want to overstate the distinction. Both approaches tend to seek this balance that I've mentioned, that refers to the interests and the rights of owners of copyright versus the needs of users to have access to copyrighted works.
Turning to page 6, I would emphasize that copyright is part of the family of intellectual property, of course. It is a statutory right. It falls under federal jurisdiction, as do the other intellectual property areas, which is to say that copyright would not exist but for the Copyright Act. In order to introduce new rights or deal with new obligations--international conventions, for example--the Copyright Act must be amended. That of course is the challenge that faces us both.
Turning to page 7, copyright policy is, as I mentioned, a shared responsibility between the Minister of Industry and the Minister of Canadian Heritage. Of course, the Ministry of Industry is responsible for the economic aspects of copyright. It's an important marketplace framework law that encourages innovation. At the Department of Canadian Heritage, we are interested in the cultural aspects. We see it as a capacity-building tool. It helps the creation of Canadian content. And of course we take into account the need to ensure appropriate access as well, to enable Canadians to tell stories to each other.
Page 8 asks, what is protected by copyright? We list the various works there. There are two broad categories here, which can be confusing. The first category deals with various works of authors and the second deals with what are called “neighbouring” rights.
The word “authors” can be a bit confusing to a newcomer to the copyright area. We're not talking about authors in the narrow sense of writers of novels or literary works. We're talking about authors in the copyright sense, which in its broadest meaning refers to all creators of works--writers, composers, and artists. And you can see the list of the types of works that are subject to copyright protection.
The other subject matter are not works per se but the contributions that performers, producers, and broadcasters make. These are referred to as neighbouring rights, and in fact they are a separate category of copyright. Some jurisdictions lump them all together as copyright. Canada makes a distinction, although in the generic sense of the term, we refer to it as copyright. All of these rights are set out in the Copyright Act.
The Chair: Excuse me for interrupting, but we'll have to break for the vote. We'll just have time to get there.
Can I ask you to wait around, maybe have some coffee, until we get back? We'll come back as soon as we can.
The meeting is suspended.
The Chair: The meeting will resume.
Mr. Stockfish, maybe you can start where you left off.
Mr. Bruce Stockfish: Thank you, Mr. Chairman.
For members who have just arrived, I was giving a thrilling lecture on “Copyright 101”. I'll just recap where we left off, which was page 8. We were talking about the various works that were subject to copyright protection. The distinction I had made was that there are creative works by authors as opposed to subject matter, which is related to copyright, that are subject to additional limited rights for performers, producers, and broadcasters.
On page 9 there's a bit of an elaboration on the kinds of works that are subject to copyright, the kinds of creative works for which authors have protection. You'll see various examples in the list of the various works. Notable among literary works, for example, are computer programs, which are not cultural in nature but certainly considered to be a literary work--a little controversial for some. Artistic works include architectural works, for example. And another important work, which is fairly considered a compilation, is multimedia work.
All of these works have broader sectoral interests associated with them. As a result, there are a number of stakeholders, again, who are more interested in some works than others. All of course are interested in copyright.
I'll give you just a few examples of the kinds of stakeholders who will be interested in these various works and therefore the issues associated with them. Some of them you will be familiar with.
Under literary works, of course there's the Writers' Union; l'Association nationale des éditeurs de livres, ANEL; the ACP, Association of Canadian Publishers; and the Canadian Publishers' Council. These are all some of the stakeholders we deal with in the literary works area.
I should warn you that copyright is rife with acronyms. It's an alphabet soup that I'm still coming to terms with. You will be hearing from a number of these associations with cryptic acronyms as well.
Under dramatic works, some of the stakeholders you may hear from include the Directors Guild; the Writers Guild; the CFTPA, the Canadian Film and Television Production Association; and the APTFQ, the producers association in Quebec.
With regard to musical works, of course there's CRIA, the Canadian Recording Industry Association; CIRPA, the Canadian Independent Record Production Association; and ADISQ in Quebec.
Under artistic works, the Creators' Rights Alliance is a broad alliance of visual artists; CAR/FAC, the collective that represents visual artists; and CAPIC, the photographers association.
And of course there's a variety of institutional users who will be interested in all these works. The Canadian Library Association; the Canadian Museums Association; CMEC, the Council of Ministers of Education for Canada; and the Canadian Association of University Teachers--all are interested in the educational aspects of many of these issues. And that's not to mention the various intermediaries I referred to earlier, who in fact have interests as both users and copyright owners--for instance, the Canadian Association of Broadcasters and CAIP, the Canadian Association of Internet Providers.
I won't go on. That's just to give you a bit of a flavour of the kinds of stakeholders who are interested in these various works and various sectors.
On page 10 is a similar idea with regard to that related subject matter I referred to. These are areas for which there are new rights, associated related rights--neighbouring rights, they're called--for which producers, performers, and broadcasters have limited rights in these areas.
With regard to performers, of course, there will be other copyright interested groups, such as ACTRA, representing the actors, and UDA, Union des artistes in Quebec. These are groups who are interested in performers' performances.
There are the sound recordings, and of course it would be the producers and the same groups that are interested in the creative rights, per se--CRIA and ADISQ--and of course with broadcast signals, it includes the Canadian Association of Broadcasters.
Neighbouring rights owners are seeking greater protection for their rights, as you'll hear when we get into the various issues that we're dealing with.
With page 11 we turn to the kinds of rights that are protected in copyright. Basically there are two categories of rights, economic rights and moral rights.
With regard to economic rights, I refer to the rights that are associated with the works that a copyright owner has control over. There's an element of exclusivity. The rights of a copyright owner are exclusive in the sense that he or she will have control over the use of that right, to a certain extent, or the ability to authorize the various uses. Some of these uses are listed. Reproduction right is the key; it's the cornerstone of rights in the area of copyright. Some of the other important rights are communication to the public and public performance. Adaptation and translation are also subject to control of the copyright owner.
Others have been added to the Copyright Act over the years--part of the complication of the Copyright Act. The exhibition right, for example, was added in 1988 to the Copyright Act to recognize something equivalent for visual artists, since in fact there's no question of reproduction or communication of a statue, for example. But there's an equivalent right for exhibition that these rights holders now have.
It's notable here that not all uses are subject to control by the rights holder. By implication, private performances are not subject to control. We can listen to performances in our homes as much as we want without the intervention of the rights holder. Similarly, we can lend a book or resell a book without control of the copyright holder. It's these exclusive rights that deal with the fundamental uses of works--reproduction and communication to the public, and public performance--that are the basis for copyright.
I'll skip pages 12, 13, and 14, which basically elaborate on the kinds of economic rights associated with neighbouring rights. I'll move to the second category of rights on page 15, moral rights.
Moral rights are derived from the European droit d'auteur regime. Canada in fact was first among the Anglo-American countries to adopt moral rights in its Copyright Act in 1931. Of course, that's partly due to the fact that we draw part of our tradition from the droit d'auteur regime.
Moral rights are divided into three categories, as you can see. They are not economic in nature; they refer to the right of attribution, which is to say that even if an author were to transfer copyright and thereby lose the economic right, or control over the economic aspects of the work, that author still has the right to be associated, as the author, to that work. That is his or her moral right.
Similarly, there is a right of integrity to prevent prejudicial changes to the work. Even if the economic right is surrendered, the author has the ability to prevent a moustache being painted--to use the vernacular--on his or her painting. One rare real example occurred about 20 years ago with the Michael Snow exhibit of the geese hanging in the Eaton Centre. Even though he'd sold his rights to the Eaton Centre, the Eaton Centre at that time thought it a good initiative to put ribbons around the necks of the geese to market the Eaton Centre at Christmas time. It may have looked like a good idea at the time, but of course Mr. Snow objected; this was a violation of his moral rights. The court upheld it, because it was a prejudicial change to his work as a work of art. That is an example of the moral right of integrity.
Similarly, there is a right of association. An author has the moral right to prevent use of his work in association with something that he would feel would be prejudicial to his work. For example, it could be a work by an association whose views he or she disagreed with strenuously, and that person would have the moral right to intervene.
Only authors have moral rights at this time. Performers and producers do not have moral rights, and again, this is an issue that we will discuss more on Thursday.
Turning to page 16, these are some of the fundamental elements required for copyright protection. There are two keys ones, originality and fixation. For an author's work to be protected, there has to be an element of originality. This is not true in all jurisdictions, and in fact it's a changing concept, but in Canada, at least, there has to be an element of originality.
As I mentioned, this is an issue the Supreme Court of Canada is considering in the law society case. The question will be, to what extent must a work be original? In that case, the publisher seeks protection for cases with headnotes that are being reproduced in law journals and law reporters, and the Supreme Court will be dealing with that issue, on whether it's enough simply to have an element of work, an investment in the work, that is less creative, or whether there has to be an element of originality. But there has to be a basic threshold met for originality.
Similarly, there must be fixation. Copyright does not protect ideas. This is a fundamental tenet of copyright, that ideas are free, but it is the expression of those ideas that are subject to protection under the Copyright Act. The expression takes the form of fixation, whether it's in the form of a book, or a play, or recording of a song.
Copyright arises automatically upon creation. It's not like a patent or a trademark in that regard, which must be registered in order to receive protection. That registration would occur with the Canadian Intellectual Property Office. However, it is possible to register copyright. It is an optional matter. Typically it's done for evidentiary purposes to confirm that in fact an author of a work is indeed the author.
Page 17 asks, very simply, who is the author? Well, it's the individual who creates the work. That should be fairly straightforward, although there are some qualifications with certain works, such as photographs.
Turning to page 18, the individual who creates the work is the author, and therefore that author, at the time of creation, is in fact the first owner of copyright. Of course, that does not mean that the author continues to be the owner of copyright. There are some exceptions, or qualifications, to the principle that the author is the first owner. You see them listed there. When works are created by an employee in the course of his or her employment, then the employer is the copyright owner. Crown copyright is similar. Commissioned photographs have a special rule existing in the Copyright Act, in which the commissioner of the photograph is the owner of the copyright. This is an issue for photographers, and in fact is being dealt with currently in a private member's bill in the Senate, Bill S-20. We've identified this as an issue for consideration as well. Again, we'll get more into that on Thursday.
Turning now to page 19, to the term of protection, how long is copyright protected? Part of the balance of copyright is the limitation of the term of protection. Creators are to be rewarded with exclusivity, the control, that I referred to earlier, but only for a limited time. After that time, works will fall in the public domain and be available for use by the public at large. Currently in Canada the term of copyright protection, as a general rule, is the life of the author plus an additional 50 years. This is the international standard established in the Berne convention. Other jurisdictions have gone further, notably the United States and Europe, who both have life plus 70 years. This is yet another issue we've identified in oursection 92 report for midterm consideration. Again, you may hear more about that from various stakeholders.
On page 20, just very quickly, we address the different terms of protection that are available for the subject matter, subject to neighbouring rights. For performers, producers, and broadcasters, typically the rule is 50 years from the time of fixation.
I've mentioned the “balance” word on a few occasions. Page 21 talks about some of the limitations and exceptions that are in the Copyright Act. There are exceptions to the ability of a rights holder to control his or her work. There are specific uses that certain users may use without the consent of the rights holder. Typically we see it in the case of special institutional use--the use of works in a classroom, for example, putting works on the chalkboard. Preservation purposes allow archivists, for example, an exception.
Fair dealing is an important limitation. As I mentioned, it's also being considered by the Supreme Court. All of us are entitled to make use of existing works for research purposes, for quotations in the press--excerpts of films, for example, for promotional purposes. All of these are subject to the fair dealing exception, which, it can be noted, is a less broad concept than the fair use limitation, which you may have heard of, as is used in the United States. This is an area that is not defined and, as I mentioned, is being tested in the courts.
Another form of limitation is the compulsory licence, as you'll recall when we came before this committee to marshall through Bill C-11, the bill amending the Copyright Act to deal with retransmission. In fact, the underlying concern with regard to retransmission by the Internet was the availability of a compulsory licence, which is a limitation on a rights holder's ability to exclusively deal with his work. In this case, it's not an exception in the sense that there's an absolute ability for a user to access the work, because in this case there is provision for remuneration, which is set by the Copyright Board.
Finally, the private copying regime is a big issue, which undoubtedly you'll hear about as well. The private copying regime entails an exception for the private copying of works in conjunction with an associated levy. So, again, there is a limitation on the ability of rights holders to attempt to control the private copying that goes on. Certainly we'll be talking a bit more about that.
Again, this is an effort on the part of policy-makers and legislators to achieve the right balance, in the right circumstances, between the rights of the creators of copyright and the interests of users.
Turning to page 22, an important aspect of copyright is the fact that other persons may be authorized to use those works. I mentioned that the author is the first owner of copyright, but in fact the author's works can be disposed of. In this instance, I'm talking about the economic rights. Moral rights cannot be disposed of, although they can be waived. If Michael Snow had not objected to ribbons being put on his geese, he could have waived that right, but he could not assign the moral right to the Eaton Centre to do as they wished in the context of moral rights.
Page 23 deals with how a rights holder may dispose of his rights. There are two broad examples of how rights holders typically do that. The author or subsequent rights holder can assign his or her copyright in a work. This involves a change of ownership, and the assignment results in a new owner of copyright. Authors often assign their rights to producers or publishers for remuneration. This is why the associations I referred to earlier, representing producers and publishers, are themselves very much interested in copyright protection.
Copyright owners can also, of course, dispose of the rights by licence. They have the authority to authorize use of their works, and of course this is done on a regular basis, either on a transitional basis or on a blanket basis. In any event, it's a permission by the rights holder to use his or her work on a limited basis, usually for remuneration.
Turning to page 24, licensing takes us into the area of rights management, a very important aspect of copyright that is recognized in the Copyright Act but is really a response by the marketplace to make the administration of copyright more efficient. As I mentioned, the owners of copyright can set the terms for how their works are used by a licence, typically. The licence can be done either individually on a transactional basis or collectively. Transactionally, of course, the author individually can dispose of his or her rights on a case by case basis, or that person can rely on an agency to in fact do that kind of transactional type of licence. And this often is the case with regard to large works or complicated works that require negotiation. Many agencies act on behalf of copyright holders to license on a transactional basis.
Another form of licence is a blanket licence, which has arisen because of the concerns on the part of individual rights holders to be able to negotiate on their own. Typically, the individual owner will assign his right to a collective to in fact act on his or her behalf. The collective will negotiate the fees with the user, usually an institutional user, and distribute those fees according to an internal formula, or else the tariff could be set by the Copyright Board for purpose of collecting by the collective.
An example of negotiation would be in the literary area, where Access Copyright or COPIBEQ would act on behalf of the owners of literary works to collect fees on a negotiated basis from various institutional users--schools, governments, banks, etc. This is an ongoing process. SOCAN, on the other hand, when it deals with collecting for the exercise of the performance right with regard to music by radio stations and other broadcasters, will have its tariffs set by the Copyright Board through a number of the tariffs that it sets and collect on that basis, but again, it will distribute the revenues it collects to its various members.
The last license, as I mentioned earlier, is the compulsory licence, also a tariff set by the Copyright Board in the area of retransmission.
I mentioned the collectives. These make up another stakeholder. There are 36 collectives in Canada. They are the intermediaries who attempt to do, on behalf of many, what the individuals cannot do on their own.
The Copyright Board is an important player, of course, in this process. They are the tariff-setting organization for various rights. These tariffs form the basis, in effect, for royalties to be collected by the rights holders.
Let's turn now to the international scene, on page 25, because I know that's an area of interest. This sets out some of the organizations that are very relevant to us in the area of copyright policy-making. Copyright is a very international area by its very nature. Works cross borders, and the rights that are inherent in these works will be of interest to authors and governments around the world.
It's for this the reason that the World Intellectual Property Organization was created. The Berne convention, which I'll turn to in a minute, is the important convention in the area of copyright for the WIPO, which is a United Nations agency based in Geneva. UNESCO is another United Nations agency, based in Paris, also interested in copyright, but it plays probably a lesser role. It did develop one copyright convention, the Universal Copyright Convention, but really the Berne convention is the important convention that we deal with, administered by WIPO.
A number of trade agreements, more and more trade agreements are becoming...intellectual property agreements, and copyright among them. The WTO and NAFTA are the key ones among them.
Turning to page 26, what is common in these international agreements? There are two basic principles that governments strive to agree to in an international context. In fact, the Berne convention and other international conventions address these two principles. The first is to establish a minimum level of rights. I mentioned some of the rights that are available to authors--the right of reproduction, the right of communication, the right of public performance. These are rights that are guaranteed, at a minimum level, under international conventions. They've been expanded over the years, but these are the basic rights that all countries, if they're going to adhere to international conventions, must provide for in their domestic law.
The other important principle is national treatment. As with most agreements, there are provisions that foreign nationals must be given the same or better protection as domestic nationals, in this case in the area of copyright protection. That translates itself to Canadian rights holders, whose works are used in foreign countries, being entitled to remuneration or having the same control and rights for that use as foreign rights holders are entitled to in Canada. In fact, you see collective societies entering into agreements to provide for the exchange of moneys on that basis.
On page 27 is a small list of those key agreements that Canada is a member of, but I should mention that the Berne convention is the key convention. It was negotiated in 1886. Prior to that there was a series of bilateral agreements, not unlike how trade agreements have developed recently. This network of the laterals attempted to set standards, but of course, many of the standards were inconsistent. In many ways it was the Berne convention that brought some harmonization to those standards.
Canada is a member of the Berne convention, the most recent version being 1971. Our law has been amended to implement the standards in Berne. The Rome convention deals with the neighbouring rights I referred to earlier. Canada is a member of the Rome convention as well.
Of course, there's reference to the trade agreements that I referred to earlier. TRIPS is the important agreement in the WTO dealing with trade-related intellectual property rights, and NAFTA deals with some of the principles. The important thing to note here, I think, is that intellectual property, including copyright, has become very commercial, very much of interest to trade negotiators around the world, and it's for that reason that copyright now finds itself in trade agreements.
The Chair: Mr. Stockfish, may I interrupt you for just a minute?
A vote has been called. We have to be back at the House by a quarter to one, so we'll have to break in about 10 minutes.
What I would suggest is that we finish this today. I was hoping we would have time for questions by members, but maybe we could have this on Thursday, if you're going to be back then.
So we'll break in 10 minutes.
Mr. Bruce Stockfish: Thank you, Mr. Chairman.
Turning to page 28, the other agreements referred to here are the WIPO copyright treaty and the WIPO performers and phonograms treaty. I'll talk about them more in just a minute. The important point to note here is that Canada has signed these agreements but not ratified them. Canada is a member of the Berne convention because we have ratified the Berne convention. In order to do that, we have amended our copyright law to be consistent with Berne.
In 1996 Canada signed the two WIPO “Internet treaties”, as they're referred to, which indicates an intention not to derogate from the principles of those conventions but does not bind Canada as a matter of international law. Of course, it's the issues in those treaties, among other issues, that we're currently working on with a view to putting ourselves in a position to ratify them once our analysis has been done. Again, we'll talk more about our work on these issues on Thursday.
On page 29 we get into a bit of elaboration on some of the principles in the Berne convention. I think we can skip over that, and the Rome convention mentioned on page 30.
The free trade agreements, on page 31, we've already talked about. I would just underline the fact that copyright being in trade agreements is a recognition of the importance, the economic importance, of intellectual property generally. The U.S. entertainment industry is second-largest, after aerospace, and it's for that reason the United States government attaches a lot of importance to copyright in its international negotiations, including in the area of trade. Bill Gates, whose empire is based on software, is the richest man in the world. That may be a signal, too, as to just how important copyright is in economic terms as well.
The other important thing to note in the free trade agreements is that they contain dispute settlement mechanisms, which are not present except on a state-to-state resolution basis in the International Court of Justice. This is an important point, because the Berne convention in fact is reflected in both TRIPS, the World Trade Organization agreement, and the NAFTA. So vis-à-vis our trading partners, it's important to note that dispute settlement is a possible consequence in the trade context.
Turning to pages 33 and 34, we mention the two WIPO Internet treaties that I referred to before. They are enforced. They came into force this past year. As I mentioned, Canada's a signatory but not a member, and we are considering the legislation that would be required to ratify these two treaties.
In conclusion, then, on Thursday we will examine the state of our work, including on these issues, in order to put us into a position to deal with these treaties and some of the other issues.
Perhaps I can give you just a bit of an historical perspective, to conclude, because it's the technological context in which we're working and in which copyright has become such a hot issue today, and historically, technology has always challenged copyright. If you go back even to the perforated rolls at the turn of the century, this form of music distribution and music performance was of great concern to the music rights holders at the time. Similarly, the development of the phonograph and other reproduction technologies caused interested copyright stakeholders to lobby the government to restrict or to limit that technology. Radio came along and provided another vehicle for the performance of music that could not be subject to the control of rights holders.
Rights holders have typically sought means to limit uses of that technology in order to respect the kinds of rights that they had negotiated in the past, and similarly with regard to the photocopier, the VCR, and other new forms of technology that make it more and more difficult for rights holders to have control over the kinds of uses that they typically had control over.
In each case there was a response, either a legislative response, with new rights, new exceptions, and new forms of remuneration, or an administered response. The copyright stakeholders could form a collective. They could arrange among themselves for new licensing techniques in order to allow for remuneration, if not control.
The issue we're facing now, of course, is whether the Internet is simply another form of technology that is challenging us but for which we can make the appropriate legislative or administrative response, or whether we are looking at something more fundamental that challenges the very foundation of copyright.
We are looking at these issues in this context. We are looking at new rights. We are looking at possible limitations on those rights, again looking for the appropriate balance in the Internet environments, but the question remains as to whether the Internet is so fundamentally different that we need to look more radically at our act with a view to amending it to find a new appropriate balance. There is a tension between the effort to preserve the old rules in the Internet context and developing new rules.
That is our collective challenge, we as policy-makers and you as legislators. You will certainly be hearing different views from the many different stakeholders who will come before you. On Thursday we'll get into some of the issues that we are considering now and the status of our work and how we intend to proceed over the coming months.
We look forward to talking to you more about those issues.
The Chair: We have another five minutes.
I just want to ask you briefly—I'm sure members will be interested—what timetable do you see for legislation to ratify WIPO? Is it far away, is it close...? Maybe you could give us some kind of idea.
Mr. Bruce Stockfish: We've indicated in the section 92 report our timetable, which we can elaborate on when we speak to you on Thursday, that there will be issues in the short term, medium term, and long term. We've identified those issues in the short term for one to two years from the time of tabling, which is to say over the next couple of years. And that is exactly what we're doing. We're working on those issues with a view to developing legislation. We hope to be able to go to cabinet for drafting authority, but we're continuing to work on the issues. There is policy analysis required, legal analysis, and consultations on some of the issues in that basket of issues in the first group that we're looking at. Some are more ready than others. Some still require consultation. That's what we'll be working on over the next few months, with a view to being in a position to go to cabinet at the appropriate time and develop a bill after that.
Drafting will take place by the Department of Justice. That will take some time as well. It's conceivable that we would be in a position to have a bill sometime in the next year, probably later in the year. Of course, this depends on the ability of Parliament to deal with this issue.
That, in rough terms, is where we are going, but we have many issues to consult on and do further work on. When the issues are thoroughly consulted on and analyzed, we will be submitting, to our respective ministers, our recommendation as to ratification of the treaties themselves. But the act itself will have to be amended before we can make a recommendation on whether or not to ratify.
The Chair: I will get to you, Mr. Bonwick.
I have just one question before members break.
We are in a little bit of a quandary. Last week many of you were not here. We had a discussion about who we should invite for our first panels, whether it should be a theme format or whether it should be just a pick-up format. We couldn't get agreement. As a result, the clerk wasn't able to invite copyright people and associations for our first meeting, because we never did reach a conclusion.
We are in a bit of a fix. If we are going to invite people, we have to give them notice to get here. That would be for the week after we return from the break.
I would like to suggest that for the first two meetings, we have a list of people who submitted briefs, and we also have a list of the people it's been suggested we invite globally. We couldn't agree on the order, so perhaps we should just give the mandate to our researchers to suggest the first two panels and go with that. Otherwise, we won't be able to have a business meeting ahead of time to agree on a list, and we won't be able to hear people.
Mr. Jim Abbott (Kootenay—Columbia): I would just like to suggest, Mr. Chairman, that perhaps myself as a vice-chair and Mr. Harvard and you could get a flavour of where the committee's coming from to give our researchers some assistance with that. I don't think just delegating that to them that is a good idea.
The Chair: All right.
Mr. Paul Bonwick (Simcoe—Grey): With regard to your question, Mr. Chairman, we don't have time to get into it right now, but I hope Mr. Stockfish has a much more succinct answer on Thursday, because I certainly didn't understand the timelines in his response to your question. To me it was confusing.
So if you could give us a more succinct answer on Thursday, I would appreciate it.
The Chair: Yes.
Mr. Jim Abbott: I want to compliment you, Mr. Stockfish, and the officials who helped to put together the primer we just had. I have never seen a more clear and more succinct presentation of this very complex issue. So I'd like to give you that compliment.
The Chair: Coming from Mr. Abbott, that's a big compliment. It doesn't happen too often.
Mr. Bruce Stockfish: Thank you very much.
The Chair: Thank you very much.
The meeting is adjourned.