HERI Committee Meeting
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37th PARLIAMENT, 2nd SESSION
Standing Committee on Canadian Heritage
Thursday, November 6, 2003
|The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.))|
|Hon. Sheila Copps (Minister of Canadian Heritage)|
|Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance)|
|Mr. Paul Bonwick (Simcoe—Grey, Lib.)|
|Mr. Paul Bonwick|
|Ms. Carole-Marie Allard (Laval East, Lib.)|
|Ms. Sheila Copps|
|Mr. Jim Abbott|
|Ms. Christiane Gagnon (Québec, BQ)|
|Mr. Paul Bonwick|
|Ms. Liza Frulla (Verdun—Saint-Henri—Saint-Paul—Pointe Saint-Charles, Lib.)|
|Mr. Alex Shepherd (Durham, Lib.)|
|Ms. Carole-Marie Allard|
|Ms. Sheila Copps|
|Ms. Liza Frulla|
|Ms. Sheila Copps|
|Ms. Sheila Copps|
|Ms. Christiane Gagnon|
|Mr. Sundeep Chauhan (General Counsel, Neighbouring Rights Collective of Canada)|
|Mr. Brian Robertson (President, Canadian Recording Industry Association)|
|Mr. Brian Robertson|
|Mrs. Solange Drouin (Director General and Vice-President of Public Affairs, Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ))|
|Ms. Lyette Bouchard (Assistant Director General, Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ))|
|Mrs. Solange Drouin|
|Ms. Francine Bertrand-Venne (Director General, SPACQ, Société professionnelle des auteurs et des compositeurs du Québec et Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada)|
|Mrs. Claudette Fortier (Adviser, SODRAC, Société professionnelle des auteurs et des compositeurs du Québec et Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada)|
|Mrs. Claudette Fortier|
|Mr. Roger Doucet (Deputy Minister, Department of Education (New Brunswick), Copyright Consortium of the Council of Ministers of Education, Canada)|
|Ms. Wanda Noel (Legal Counsel, Copyright Consortium of the Council of Ministers of Education, Canada)|
|Ms. Liza Frulla|
|Mr. Brian Robertson|
|Ms. Liza Frulla|
|Ms. Wanda Noel|
|Ms. Liza Frulla|
|Mrs. Claudette Fortier|
|Ms. Francine Bertrand-Venne|
|Mr. Paul Bonwick|
|Mr. Paul Bonwick|
|Ms. Wanda Noel|
|Mr. Paul Bonwick|
|Ms. Wanda Noel|
|Mr. Roger Doucet|
|Mr. Roger Doucet|
|Ms. Carole-Marie Allard|
|Mrs. Solange Drouin|
|Ms. Carole-Marie Allard|
|Mrs. Solange Drouin|
|Ms. Carole-Marie Allard|
|Mrs. Solange Drouin|
|Ms. Francine Bertrand-Venne|
|Mr. Alex Shepherd|
|Ms. Wanda Noel|
|Mr. Alex Shepherd|
|Ms. Wanda Noel|
|Ms. Wanda Noel|
|Mr. Paul Bonwick|
|Ms. Liza Frulla|
|Mrs. Claudette Fortier|
Standing Committee on Canadian Heritage
Thursday, November 6, 2003
[Recorded by Electronic Apparatus]
The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I declare open the meeting of the Standing Committee on Canadian Heritage, which meets today to continue its review of the Copyright Act.
The Standing Committee on Canadian Heritage is meeting today to continue its review of the Copyright Act.
The minister has asked me for a few minutes to speak to us about the release of the report of the government, the response to our report on broadcasting, and I think she wants to also add a few notes on Mr. Bonwick's motion regarding WIPO.
Hon. Sheila Copps (Minister of Canadian Heritage): First of all, I'd like to thank the chair and the members for their openness in agreeing to receive me without prior notice. I thought it was timely, because at ten o'clock this morning or thereabouts we tabled our response to your committee report. I believe your committee report was one of the finest pieces of broadcasting analysis we've seen, and it will set the stage for some 21st century solutions to broadcasting. There remain a couple of areas of contention, and I wanted to take a chance to speak about a couple of those today.
You will note in the document some response in the area of the issue of ownership, two kinds of ownership, Canadian ownership and cross-media ownership.
I believe in and strongly support the conclusion of this committee that the current ownership system in Canada has remained in Canadian hands and created an opportunity for an extremely successful commercial broadcasting sector and at the same time a broadcasting sector of public and private producers of which we can be very proud.
In the context of the recommendations, your conclusions clash with those of the Department of Industry, whose committee had a hearing sometime in the spring to look at this issue. So we have two committees, two different conclusions.
How do we square this circle? I'm going to make a recommendation, Mr. Chair, and while obviously it's up to you to decide whether or not you want to pursue the recommendation, I would give you an example of a joint subcommittee of the committee on Canadian heritage and the committee on foreign affairs.
Most of you probably heard a little bit in the news recently about the convention on diversity, and you will know that the people of Canada, through the Government of Canada, have actually come forward to support a world convention on diversity that is going to be voted on at UNESCO in 2005, the first tranche of which was approved recently at a meeting in Paris.
What a lot of people don't know, and I'd like to put it on the record, is that the original idea for this convention actually came from a parliamentary committee. It was actually a joint committee of the Canadian heritage and foreign affairs committees, co-chaired by Bill Graham and Sam Bulte, and I think it goes back probably four years ago now, that paved the way for the idea of an instrument being taken up first by the INCP, or the
RIPC, in French. In English, it is the INCP.
We took forward the idea of creation of an instrument, and that instrument became the convention that is now going to be a full convention at UNESCO. That is incredibly important, and it started because two different committees of Parliament came together and had a solution.
Why am I bringing this forward? You will notice in the response to the recommendations of the committee dealing with ownership that I've reiterated my belief that Canadian broadcasting should remain in Canadian hands, and I'm happy to say that this position has been supported by this committee. But there are clearly others around the parliamentary table who have a different perspective.
To ensure that this decision is actually made by parliamentarians and not by so-called experts, I think what's really important is that we see if it's possible for the Standing Committee on Canadian Heritage, in concert with the industry committee, to create a subcommittee to look at ownership issues. I don't believe we should restrict ourselves to Canadian ownership issues, although I believe they should be on the table. And if we believe in our ideas we should allow them to be tested in public, but we should also be looking at the issue of cross-ownership.
The committee did speak briefly on the issue of cross-ownership. We have made a report. You will know that the Senate committee right now is looking at cross-ownership issues. I'm happy to report that the INCP, which is the International Network on Cultural Policy, has just undertaken a major review of all cross-ownership rules in different jurisdictions around the world.
Canada's situation is rather unique. Perhaps all countries think that, but our country spans six time zones. Because of our geography and our demographic characteristics, what works in Norway does not necessarily work here. We have two official languages as well as many other languages.
The committee may decide that it would be worthwhile to consider, along with the Standing Committee on Industry, Science and Technology, issues related to ownership, whether that be Canadian ownership or cross-ownership. In fact, both are intertwined.
I don't know what your outcome will be, but I can tell you, Mr. Chair, if I look back to where we were with the instrument, it was your work that created a world convention--your work. I don't think you can underestimate the need to take a hard look at ownership issues in broadcasting generally, and not just ownership issues as they relate to citizenship, but also ownership issues as they relate to cross-ownership.
With those few comments, I also wanted to take the opportunity to speak a little bit about WIPO. Why did I ask to appear before you? Mr. Chair, in the interest of time, you had a very compelling motion put forward by one of the members. My department has been in negotiation and discussion with the Department of Industry for some time on the wording of a letter, which I might give to you sometime in the new year, if I can get the translation done. So rather than waiting for the translation and the agreement between two parties to a letter that, frankly, if I shared it with you now, would basically take three months to not tell you too much, I thought it would be a lot easier for me to come before the committee and answer questions on what process you might use to achieve and facilitate your objectives, which is to get this WIPO treaty ratified.
If I go back to 1997...
I don't want to use the committee's time to review Canada's history. However, the battle that was fought here over copyright was a fierce one. I do not particularly want to start that again. It was the first time in 50 years that a copyright policy was being developed.
In 1997, the WIPO Copyright Treaty was brought forward. In 1999, the cabinet endorsed the idea that we sign on. However, even though everyone agreed that this agreement be ratified, that never happened : there were drafting, translation and legal problems. As far as I'm concerned, I'm in politics and I don't have a decade to spend on this. Since 1999 we have stated our intention to ratify this. Now, however, apparently the best we can hope for is a two-year timeframe.
If, in your committee, you are able to speed the process along and you present a bill put forward by the association, you can table that proposal before the government. As minister, and as the advocate for copyright, I am very open to the idea of bringing such a bill forward.
Simply put, if you're waiting for me to go and get cabinet authority on the wording, it could be a rather long wait. I've been waiting actually since 1999. At this point I would suggest that the best course of action to achieve your objectives might be to hear from CRIA to see what would be an acceptable wording.
You don't need to have ministerial approval to proceed with wording that you propose. And if that wording in the end is given to the government and a minister decides to take it before cabinet and defend it, you're charting new ground, but it's very good ground, because it's ground that should be charted.
I really want to congratulate you on moving with this motion, because I think this motion gets to the nub of why people sometimes get frustrated. When decisions are made to support a process and it takes four or five years to get the wording forward, it's no wonder that people get frustrated, including sometimes ministers. So rather than waiting for the translated letter, which they thought they might get in the spring, I thought I'd come before the committee and be prepared and very happy to answer your questions.
I put a bit of a challenge before you, too, on the issue of the broadcasting response. If you decide that it makes sense to strike a subcommittee, you do have the model of the standing subcommittee on the instrument. The Departments of Foreign Affairs and Canadian Heritage did a shared subcommittee on the instrument, which was very useful and actually led the way to the creation of a convention.
If you decide that you want to create a subcommittee on ownership, looking at, I would recommend, ownership of all kinds, including Canadian ownership and cross-ownership, and seek the support of the Standing Committee on Industry, I think that would mean this would be a decision ultimately made by parliamentarians. That's important, because, remember, when you're talking broadcasting, there are an awful lot of interest groups who would prefer to have the issues dealt with by themselves.
The Chair: Minister, I know if we open it to questions we're going to be here a long time. I'm just thinking about the witnesses, who came a long way to be heard, and I think we have to be fair to them as well.
Are members agreeable to have questions and stay longer to hear witnesses? They have to be given their time. There are five members here.
Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance): Mr. Chairman, I think it's really important. The minister has made herself available to the committee, and there are some very pressing questions.
The Chair: I understand that, but are members agreeable to hearing witnesses after our projected closing time of one o'clock? In fairness to them, they've come here to be heard.
Mr. Paul Bonwick (Simcoe—Grey, Lib.): Extend it for half an hour.
The Chair: Is that okay?
Mr. Paul Bonwick: That's fine with me.
The Chair: All right.
Ms. Carole-Marie Allard (Laval East, Lib.): Not for me. I can't.
An hon. member: Well, as long as you have quorum.
The Chair: Okay, so we'll have a brief period of questions. We'll have one question each.
Mr. Abbott, Madame Gagnon, and then Mr. Bonwick.
Ms. Sheila Copps: Mr. Chair, in the interest of time, did you want me to collect them all, or do them individually?
The Chair: That's a good idea. We'll just file the questions, and the minister will answer all of them in one go.
Mr. Jim Abbott: Quickly, a little honey, a little vinegar, and then a question.
The honey is that what you have done and are in the process of doing with respect to the IICD I think is excellent. I think it's a good initiative for Canada. You'll be interested to know that I had a brief meeting with the minister of religion and culture of Thailand, and I was told that at the same time as you were having your meeting in Paris, they were having an ASEAN+2 meeting in Asia. I'm just a little bit concerned about the fact that there doesn't seem to be the coordination between the two theatres. I wouldn't mind discussing that with you further.
The vinegar is that I'm very, very pleased to see you here finally. As you know, I wrote you a letter on Bill C-36. I was very disappointed at the fact that there was some obvious dispute about that.
At the risk of re-running history, I wrote you a letter and made comments in the public that because of the dispute, it was essential that you as the minister become involved with that. It was through the good graces and the goodwill within this committee and the members of the House that we managed to resolve the issue and come to a compromise, and I was quite disappointed in the fact that you seemed to be otherwise occupied at the time.
My question is this. There are so many things in this response, but the one that leaps off the page is on page 15, on the part II fees. You're saying the government agrees that further study on part II fees is warranted. Really? Considering that the Standing Joint Committee on Scrutiny of Regulations has said that the fees are actually a tax by another name, considering that there is all-party agreement that the part II fees should be rolled back, and considering that the CAB, representing the industry, has said they're prepared to see a redirection of those fees rather than just walking away from the fees, I find it absolutely incredible that the government would be taking the position that a study is warranted. That's really quite unbelievable.
The Chair: Okay.
Ms. Christiane Gagnon (Québec, BQ): I would like to come back to your proposal to establish a subcommittee including Heritage and Industry.
In our report, we asked for a merger of all broadcasting entities that come under the Department of Industry. Perhaps that would be a better way of approaching the problem. Our goals are very different. We gave the example of the Convention on Cultural Diversity, which involved both Canadian Heritage and Foreign Affairs. However, the positions of Canadian Heritage and Foreign Affairs were not as opposed to each other.
I would like to hear how you think we could agree on something with the people from industry. Their positions are so contradictory to ours in terms of intellectual property. I'm having difficulty seeing how we could agree and move this initiative forward.
The bill on piracy, that is the theft of satellite signals, is currently before the industry committee. However, we are sort of hooked up to them and we can't see all the implications of the issue, including that of satellite signals.
Could you comment on that please?
The Chair: Okay, Mr. Bonwick and Ms. Frulla, and then we'll close the questions.
Mr. Paul Bonwick: I have a couple of points in response to the broadcast review.
Thanks very much for coming forward today, Minister, to provide it in person and answer some of the questions. Hopefully, we'll get an opportunity, at a later date, to spend a little more time on it once we have a chance to review it in detail.
With regard to the minister's challenge or suggestion to the committee with regard to forming a subcommittee, it's something I support and agree with, with a couple of conditions in there that I think the committee should put forward. That is, that we do not embark on some extensive consultative process again, when we spent arguably two years doing it the last time.
We've determined our findings. We've made recommendations on them, as has industry. I would propose that rather than go back out on this long mission to again consult the industry to find out what their opinions are, we know what their opinions are. It's a case of industry and heritage coming together to see if there is some middle ground or to try to convince one another what to do.
On part II licence fees, I can only assume it's an error, because there's a contradiction in your response. The contradiction is “the government agrees that further study of...”. The government agrees that we should be studying, and in the same sentence they say “it's warranted”.
Clearly, most of the members of the committee were of the mind that these were not justifiable and were not warranted, as were other committees of the House. I think it would be practical for us to come out with a much stronger recommendation, understanding, of course, at the end of the day, it will be finance that makes the final determination. I think we should have been stronger.
There's one place where I feel there's a kind of gaping wound in this thing. I don't see, and I could be missing it, that we talked about black market satellite reception. There's no response in here.
We were told that this is a billion-dollar problem, there are as many as 700,000 illegal satellite dishes, and there was almost a demand from industry that we coordinate with other departments, with other ministers, to address this challenge. I don't see anything in here that suggests there's going to be any coordination to address the black market.
My last point would be on the motion. That simply would be to say thank you very much for coming forward and supporting it, but there seems to be some real confusion about the wording of the motion at a ministerial level and, I would say, perhaps more specifically, from a departmental level.
We did not send a motion asking the departments to prepare letters for the ministers to deliver on why they can or why they cannot move forward with ratification. We sent a motion to the ministers saying “Ministers, please direct your officials”, not the other way around. I'm very much confused that industry officials or other officials would be preparing a response for the minister to deliver back to committee when it's completely contrary-minded to what this committee asked for.
I'm interested in how this process works. Do the department officials give the minister direction, or does the minister give the departmental officials direction?
The Chair: Ms. Frulla.
Ms. Liza Frulla (Verdun—Saint-Henri—Saint-Paul—Pointe Saint-Charles, Lib.): First, I would like to sincerely thank you for being here. I would like to take this opportunity to point out all the work that has been done on cultural diversity. It is remarkable. I want to say this publicly.
I haven't read the report and I haven't familiarized myself thoroughly with it. In fact, what the committee has accomplished, what has been tabled, in the opinion of many people, is almost a bible, that is to say it is one of the most comprehensive reports that Parliament has ever tabled.
At first blush, it is my impression that the responses include many comments such as, "it would be a good idea to", "we need to review", "an in-depth study is necessary". I do not get the impression that there is a deep commitment to what has been tabled and to all the work undertaken by my colleagues over the past two years; I myself have been here for six months. Perhaps a stronger position would have been preferred.
This brings me to foreign ownership. Industry put forward a very black and white document that said this is how things should be done, period!
I have the same concerns as Christiane, because if I go by what they tabled, there is no room for flexibility and this perhaps puts us in a weaker position. I say perhaps, keeping in mind that we will be forming a committee. I think that the timeframe is a necessary condition and I'm not sure that we will have time to set up another committee. Even if this is urgent, I don't think we have several months to come up with a strong position.
That's what worries me. Do we have the time, first? Second, will their opinion prevail in the discussions? Third, once again, I would have liked to see a more substantial response to the considerable amount of work that was done.
The Chair: One moment, please. Mr. Shepherd and Madam Allard have asked me for time for questions too.
Can you make it brief so that we have a chance for the witnesses, please?
Okay, Mr. Shepherd.
Mr. Alex Shepherd (Durham, Lib.): Thank you very much for coming here today. It has been a great treat.
On ownership of the broadcast industry, similarly, it's something I'm very interested in and concerned about. I guess to get into the meat of that is the general discussion and the belief that somehow we could regulate the industry, but we don't have to specify the ownership rules. I'm interested in your comments.
I've talked to people in the print media who believe that if you control the newspaper, you can control the editorial. I think that's the thing that concerns a lot of people here on this committee. We believe that if you control the actual equipment and so forth, you actually control the content. This seems to be a big dispute among those people in the industry and others who say that you can separate those two factors. I'd like to hear some of your comments on that issue.
The Chair: Thank you.
Ms. Carole-Marie Allard: Thank you, Mr. Chairman. Good morning, Ms. Copps. It gives me great pleasure to have you with us this morning. I am your parliamentary secretary but I would still like to share my thoughts with you.
I would like to tell you how happy I have been, ever since I began working with you and ever since I have been with the Department of Canadian Heritage, to see the work that you and your people have put into encouraging the development of a francophone society that hears itself and listens to itself throughout Canada. I think that you have been a champion. The document states that $1.5 billion have been spent on encouraging Canadian television programming and I think that this is in large part thanks to you. I want to congratulate you.
However, I would also like to hear your thoughts. There has been much discussion around the Canadian Television Fund, funding problems, two structures, and so forth. I would like you to tell us whether there will be a conclusion to this. The answer in the report is that this is still being discussed. I would like to hear your thoughts on this matter.
The Chair: Thank you, Mr. Allard.
Ms. Sheila Copps: I'm going to start from the first question first, which concerns the archives and library legislation.
Obviously, we have a good solution. I think the intention—and I wasn't involved in the original negotiations—was never to bootleg something else into the process. I think the intention was to ensure that good legislation....
When we did copyright in 1997—and I think Jim was active at the time, and Mauril Bélanger was my parliamentary secretary—it was a huge omnibus nightmare. More lobbyists attached to that legislation than to any other piece of legislation in the history of the Canadian Parliament, and right up until the last minute of the last day.... It was the last bill to go through the Senate, and someday when I write my memoirs, which hopefully will be long distant into the future.... I was told by certain people it was going to be blocked, right up until the last day, the last hour. I never went into that.
When we did the legislation, certain aspects took a lot of attention and others went through. I think what happened on that one was there was a mistake made in how they did the wording concerning “unpublished” rights for authors. In other words, if you discovered tomorrow that a Renoir painting was painted by Renoir, Renoir's heirs should be entitled to the Renoir painting.
The same principle applied in print, but what happened was there was a period that was missed. It was basically a screw-up. The department people put this into.... I had said to them, “I don't want to do another omnibus bill on copyright in my time in this department.” I can tell you, for any person who engages in it, it's much easier to do a WIPO ratification and analyze it in detail than do a giant omnibus bill.
I recommended to the department that we start drawing out different pieces, instead of following this omnibus approach. That's why this thing ended up happening the way it did. I know there were discussions back and forth. Then what happened was the parliamentary committee met. There had been a deal ostensibly discussed between parties, but then the members said, “Well, we have the right to have our say.” So we balanced the right of people to make deals and the right of parliamentarians to actually have their say. I think now we have a good solution, and hopefully everybody is happy with it.
On the issue of part II fees, one of the challenges we had—and it goes to Christiane's point about process— was that in 1993 the Department of Canadian Heritage had been created by merging five different departments. I'm responsible for 18 agencies. I have an operations budget for which I'm responsible of $3.5 billion. The previous Department of Communications, which had both the telecom and theradiodiffusion under one roof, was split.
This was done in what they call a machinery of government issue, when Kim Campbell, who was the Prime Minister at the time, decided to bring all the elements of Canadian identity under one shop. That's why you have this very strange beast, which includes Parks Canada, sport, official language minorities, arts and culture, museums,radiodiffusion—everything.
As for the recommendation in the report, which was the recommendation to put the part II fees back in, I actually wrote to the President of the Treasury Board about two years ago, after meeting with the CAB, to get this issue dealt with. The answer that came back at that time was that I would have to put it into the priority-setting exercise of my department.
What does that mean in lingo? In lingo it means if I want to get the money, I have to find it by cutting some other programs in the department. My argument was that this money is going into the fisc, and it's an overcharge; therefore it should be dealt with. When the letter came back from Treasury Board suggesting I put it in the queue for the budget, I thought, frankly, with the Trina McQueen report and the CTF money and everything else, there is a way of trying to make this work for everybody. That's why I want you guys to keep working on it, because I think with the scrutiny of regulations committee and report, which is actually looking at fees, there may be an opening.
But any decision like that doesn't come from a minister. I don't get up tomorrow morning and say “I'm going to take $70 million that is currently in the fisc and give it to somebody.” That has to be a government decision following a budgetary process.
The other thing we're conscious of now is making commitments now that may burden future governments. So the report response was deliberately supportive of the idea. Indeed, I have files myself that I've written pursuing this issue.
Hopefully, with the work of the Standing Committee on Scrutiny of Regulations, the work of the Trina McQueen report, the work of this committee, and the need to get investment in drama, you may have a solution. But I couldn't deliver that solution in this timeframe. I can't come before the committee and say yes, I will remit you $70 million that I don't have—unless I get it from the finance department and the budget process. That's why it's deliberately supportive but ambiguous.
Turning to Christiane's point, it is a problem. A lot of these issues of WIPO or satellite piracy not being addressed arise because when we split—I didn't do it, it's a machinery-of-government issue—when the previous government under Kim Campbell split the two departments, they split communications: all the telco parts went over to the Department of Industry; all the broadcasting parts came over to us. But we're also living in a time when it's all coming together. Every time we have an issue, we try to take a position, and they're trying to take a position, and sometimes you get the feeling that never the twain shall meet.
I would like to see it brought together, but that's a machinery-of-government issue that has to come from the direction of the government. A minister cannot take a portfolio item from another minister and say, now I'm taking this. If it's a machinery-of-government issue, it has to be decided by the Prime Minister. In the timeframe we had, we didn't feel that change could be accommodated.
Certainly at some point in the future I think there's a very legitimate argument to be made for looking at how it has created a bit of dysfunction in the system, which reflects itself in the work you do and in the work the other committee does.
I will go back to Christiane's point. If you go back to 1997 and look at the instrument, it wasn't always supported by everyone. In fact, at the very beginning, when we came off the so-called “magazine wars” and were trying to figure out a way to protect and promote our culture while at the same time guaranteeing access to the world, the idea of an instrument was not supported by the Department of Foreign Affairs. In fact, International Trade had the lead, and they were vigorously opposed.
When we actually put the committee together—the committee was struck with Canadian Heritage and Foreign Affairs—the work that was done in that committee permitted, I think, all of us to come closer to a consensus. The good thing about it was that it was all in the public sphere. If you have a private interest group study, it's not in the public sphere.
My belief, and certainly it's been a guiding principle for me, is that if you're on the right side of the issue, that will come out in a parliamentary committee. If you're on the wrong side of the issue, hear what the people have to say.
The idea is to look at ownership in a joint way. Is it going to be difficult? Yes, it is going to be difficult. I hope a lot of the work that's been done here you don't have to repeat. But if you put together a subcommittee of industry and heritage to look at ownership issues, and tackled not just Canadian ownership but cross-ownership issues, I think a lot of Canadians would like to hear what the people have to say. At the end of the process, I'm confident you could come to a good conclusion, which could then be recommended to the government.
I think it's a better process than.... The historic process around here is that you name a group of experts; they go to a blue-ribbon panel behind closed doors and come back with a solution, which is put to parliamentarians without their necessarily being involved in it.
I have a lot of confidence in the capacity of the two committees to come up with some sort of consensus. I think the instrument is a good example. In the beginning, International Trade was opposed. By the end of the process—and I'd have to say with excellent cooperation between Heritage and Foreign Affairs, and Bill Graham was exceptional—they ended up with a position that eventually became the consensus position.
Going back to Jim's point about the INCP, what we found when we were travelling internationally was that I would meet with culture ministers and they'd be on board, and as soon as we talked to the trade ministers, they wouldn't be on board. So we had a lot of work to do. That's one of the reasons why some of these meetings are springing up all over the world. They were never even discussed before.
When we created the INCP in 1998, I remember at the time Foreign Affairs was saying, why do you need a meeting of culture ministers? I said that's where the world is now. It's very good to get together to talk about fish and finance, but what about the things that define who we are? How can we share best practices and learn from each other?
So it's been a very good process, but it's been a very new process. The INCP was the first actual political network of culture ministers. So it gives us a chance. Right now, with the issue of cross-ownership, we're looking at what's happening in different countries around the world to see if there is a way. It may not be ownership, which goes to Alex's point.
I don't know how many of you are watching what's going on with the FCC right now, but there is a huge debate in the United States on cross-ownership, because the FCC is in the process of lifting restrictions on who can own what, and they do it by urban area. So they go into an urban area and say you cannot own radio, television, and newspapers all in the same area. Now they're looking at changing that.
Maybe it would make sense for us to look at what the FCC is doing in the United States and see how they guarantee diversity of voices. It's in the Congress right now, and it's a huge, hot issue. There are no easy answers, but if you're looking at ownership it shouldn't just be Canadian ownership; it should also be cross-ownership. I think that would be an invaluable contribution.
I talked about machinery of government. Going back to Liza's point about a deep and broad report, there's no doubt that in responding to the report I've tried to keep the door open to a lot of issues that we need your help to complete. Also, there's no doubt that some of the aspects of machinery of government are going to have to be dealt with in the long term, but they're not issues that can be dealt with by a minister. They have to be government decisions. While what you have here is not as fulsome as what was put before the committee, the committee has provided us with a great blueprint that will be a constant opportunity for us to move the agenda.
We didn't talk about the black market, precisely because when the telco radiodiffusion was split, satellites were under the Department of Industry. I'd love to give you chapter and verse on what I've tried to do on that issue. I've probably had at least 25 meetings to try to get legislation--which we now finally have--with successive ministers in the Department of Industry. We now have legislation, but I can't go before you and say I'm going to bring this legislation forward, when it's the purview of another minister.
What I can do--and this is hopefully going to be helpful in the WIPO case--is if you do the work and pack me the snowballs, I can throw them. I need somebody to pack me the snowballs, and this committee can pack us the snowballs. There's no doubt you're going to hear now from the group that will give you the details of it.
The principle of WIPO ratification is really important for creators. The practice of WIPO ratification is actually a conjoined process between two departments. In a sense, that issue really needs to be dealt with in the longer term, but we can't deal with it. So I thought it was an opportunity for me to come here, lay these things before you--also knowing that very likely if the political agenda proceeds as quickly as we anticipate, we might not have a chance.
Paul asked about the letter. I'll give you the process. When you came with that resolution I said “Hallelujah, I've been waiting for this resolution. ” I went to the department and I said “Get me the resolution, get me the bill, get me the legislation.” “Well, Minister, we have to have a discussion with the Department of Industry.” I said “Okay, let's have a meeting next week.” Then somehow there was a problem. Legal had to be consulted, then it wasn't legal, then it was translation. Then they came up with this letter.
When I saw the letter it was not acceptable to me, and I certainly didn't intend to wait until next spring to table it to you. The advice of the government officials was that I could not propose a bill to you until I'd gone to counsel and ministers and received approval for it.
I'm saying whoa, wait a minute. We have a principle; this legislation can be brought forward. If I can't do it, perhaps you can bring forward a proposed piece of legislation that we will then.... There is precedent for that with the idea of a discussion before first reading. That's how I would characterize it.
And I didn't want to wait. By the time this letter was translated, it would have been another month, and it would have been insulting. I didn't want to insult you, so I came to the committee to give you the whole story. And that is the whole story.
If you can achieve a WIPO ratification, it will be one of the happiest days of my life.
The Chair: Okay. Thank you very much, Minister.
Ms. Liza Frulla: What's my answer?
Ms. Sheila Copps: Well, that goes back to the part V thing. You see, when I got the letter on part V.... What's interesting is part V is a cost. When we started the Fonds canadien de télévision...and I actually created the fund. I created it. I conceptualized the idea of forcing the various parties around the table, because I thought it would be good for broadcasting. And I think it has been good, a bit like the Fonds de la Musique du Canada--it forces people around the table to cooperate. What it was not intended to do was replace private sector investment in television. It has been so successful and so subscribed to that sometimes when private broadcasters don't want to make an investment, the first thing they say is «Ô, c'est le fonds».
The fund came in at a time when we were just on the cusp of launching 17 new specialty channels. The idea was in the multiplication des postes. We weren't going to be able to do it strictly with private dollars, so we created the fund to try to give the opportunity to different stations. We targeted the underrepresented categories: children's, drama, and documentaries.
Over time, because it has been so successful, it has sometimes been a substitute for private investment. And I will point this out, because if you remember, the last time the answers came out, people were saying “I don't have money for this, and I don't have money for that”. The next week there was a trip to Hollywood by broadcasters to buy for the next year, and it was interesting, they actually had what they called the Canadian bidding-up process--so many people were buying Hollywood specials with fairly good cash money that there were complaints in the United States that the costs of production were being bid up by these Canadians.
My point is not to say.... Of course, people want to watch Hollywood productions, and that's wonderful, but please don't say you have no money when at the same time you have a lot of money to bring this stuff in. We have to be careful when we're looking at part V. I think we need to look at part V in the context of the CRTC changes on drama, but I think we also need to look at some of the benefits that are out there and how those benefits in the last six and a half years have put...I think the figure in the document is $1.5 billion into television production in a program that did not exist before.
So as people are looking at what they invest, I think we also need to look at what we're investing in them, and make sure that when we fix the part V problem, people don't assume that the government investment should be a substitute for their own private investment. That's why you probably need to look a little bit wider, at the total dollar picture.
That's why it's also in the hands of the Department of Finance, because they have the big picture, and they can say okay, that's fine, you can say this, but you also have the tax credits--which are a new innovation--and you also have the other incentives that are available to the industry. And if you're going to talk about one subsection of that, you also have to look at the other picture to see if in fact they're being underfinanced or whether they're being adequately financed but maybe in different areas.
I think the CTF is a piece of that. One of the things I did in the CTF originally was I forced each company to do business with an independent producer. Around the CTF table, there are some who would love to just have the money--and that includes the CBC. They'd like to just have straight cash and not necessarily partner with independents. But if you look at the explosion of television, a lot of it has been tied to the support that's gone out to independent producers, so
it has been a catalyst. Each dollar that has been put in has brought in four more dollars in investment.
There'll always be different people who want to change certain things in the fund, but when you look at the membership, you have to look at all the different pictures. And if you say to one, “You want this? Okay, I'll give you this”, then what does it do to that one? I think you need to look at a continuing role especially for the independent producers, because if we gave that up, what we would be doing is effectively subsidizing the broadcasters that already get a licence to produce and are supposed to produce in return for that licence, because prior to 1996 there was no fund.
The Chair: Thank you very much for coming, Minister. Now we'll go back to our main task today.
Ms. Sheila Copps: Could I just say what a great pleasure it has been working with this committee, especially your chair, who is nonpareil. You know, you guys really make the job of minister easy, because you do pack the snowballs for me.
The Chair: Oui.
Ms. Christiane Gagnon: Mr. Chairman, there has been a one-hour change in our schedule and I need to speak in the House on piracy, on signal theft. I apologize, but I may not be here for questions. I simply wanted to apologize to the witnesses.
The Chair: We all apologize. I was in the same position: I had a bill to present. We had to wait, and then Ms. Copps asked to appear before the committee.
Without further ado, we will now begin.
I'll let each group introduce themselves.
We will begin with the Neighbouring Rights Collective of Canada,
Mr. Sundeep Chauhan. If we can get going, you have a maximum of ten minutes, please. The floor is yours.
Mr. Sundeep Chauhan (General Counsel, Neighbouring Rights Collective of Canada): Thank you.
Mr. Chairman, committee members, for those of you who do not know me, my name is Sundeep Chauhan. As the recently appointed general counsel for the Neighbouring Rights Collective of Canada, or NRCC, I would like to thank you for giving us this opportunity to participate in the opening phase of your study on the reform of the Copyright Act and discussion of the section 92 report.
The focus of my presentation will be to briefly assess the government's recommended copyright reform agenda, more specifically, the timeframe for Canada's implementation of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which I will refer to collectively as the WIPO treaties.
Before I begin my presentation, however, I would like to briefly explain the role of the NRCC. The NRCC is a non-profit umbrella organization responsible for administering the rights of performers and makers of sound recordings to be paid equitable remuneration with respect to the public performance or communication to the public by telecommunication of performers' performances and published sound recordings.
The 1924 Copyright Act gave makers the right to charge for such use. When makers attempted to enforce this right in the late 1960s, however, lobbying by broadcasters resulted in the passage of Bill S-8 in 1971, which removed this right. Consequently, for 26 years makers were deprived by law of the right to collect money for the use of their sound recordings. This state of affairs persisted until the passage of Bill C-32 in 1997. It was only at this time that performers' rights were acknowledged and introduced.
Since then the NRCC has been collecting the royalties flowing from these rights from user groups across Canada and distributing the revenue to eligible performers and makers of sound recordings through its five member collectives: the ACTRA Performers' Rights Society, the American Federation of Musicians of the United States and Canada,
the Société de gestion collective de l'Union des artistes,
the Audio-Video Licensing Agency, AVLA,
the Société de gestion collective des droits des producteurs de phonogrammes et de vidéogrammes du Québec, the SOPROQ.
Together they represent a significant majority of those in the Canadian record industry, as well as thousands of Canadian and foreign performers.
Given that some of NRCC's board of directors are seated at the table today to individually present the respective views of their collectives, I am here to speak solely on behalf of the NRCC and not as a member of collectives.
It has been nearly seven years since Canada actively participated in the adoption of the WIPO treaties. The government has since consulted with stakeholders on numerous occasions, received various legal opinions from the Department of Justice, hired academic consultants to prepare countless papers on all aspects of WIPO ratification, and requested government policy analysts from both the Department of Canadian Heritage and Department of Industry to exhaustively analyze the relevant issues.
While Canada has been engaged in this lengthy comprehensive review, the WIPO treaties have been ratified by over 40 countries and thereby entered into force as international instruments. Any lessons that could have been learned from observing the WIPO implementation of other countries has been well documented and studied.
In sum, it is the NRCC's sincere belief that the pertinent issues related to Canada's WIPO ratification have been thoroughly analysed and consulted upon. The NRCC therefore respectfully urges the Canadian government to act now.
Why should Canada ratify the WIPO treaties? Briefly, the section 92 report itself clearly states that dealing with WIPO-related issues in a timely way is critical to maintain the responsiveness of the act to technological innovation, to preserve the integrity of the act in terms of creators' rights and users' needs, and to take account of international trends and developments.
Furthermore, when the Canadian government signed the treaties in 1997, it acknowledged that the treaties are designed to establish international minimum standards in the area of copyright and related rights. Unfortunately, these standards only apply to contracting parties.
Implementation of the WIPO treaties therefore is of vital importance in assuring that Canadian creators have the same advantages as foreign copyright owners. Canada must modernize its Copyright Act to harmonize its levels of copyright protection with those levels provided to creators, performers, and publishers of other countries, which have already ratified and implemented the WIPO treaties.
It is important that the Canadian government recognize that failure or further delay in enacting the WIPO treaties prevents Canadian businesses and consumers from realizing the benefits the treaties have to offer. The NRCC submits, for example, that maintaining the integrity of digital rights management information, as provided for in the WIPO treaties, is an important protection Canadians could benefit from.
Both NRCC and users of sound recording, such as commercial radio stations and digital pay audio undertakings, dedicate significant resources toward identifying and tracking the use of sound recordings so that the royalties collected by the NRCC, pursuant to its tariffs, can be distributed in a reasonable and equitable manner to those performers and makers whose recordings are actually used.
Users of sound recordings, however, have expressed significant difficulty in providing NRCC with such music use information, often providing hard copy or even handwritten information, which is often incomplete. Consequently, NRCC and its member collectives devote further resources toward identifying which sound recordings, of those that are used, are in fact eligible for neighbouring rights royalties according to the criteria set forth in the act.
The WIPO treaties contain legal protections prohibiting the removal or modification of rights management information and prohibiting the distribution or importation of a work from which this information has been removed, which ultimately could significantly reduce the extensive administrative costs currently being incurred by the NRCC, its member collectives, and the users of sound recordings.
To conclude, copyright law encourages and protects expressions of culture. Inadequate copyright protection deprives our creators and rights holders of the ability to determine the value of their creations and to receive adequate compensation. As a result, NRCC submits, the ratification of the WIPO treaties is among the most important reform issues related to the Copyright Act.
Canada's sluggish ratification pace has obviously caught the committee's attention, as it recently made the recommendations the Honourable Minister Copps spoke of briefly. The NRCC applauds the vision and efforts of the committee to encourage those responsible to take the steps necessary to enact and ratify the WIPO treaties in a more timely fashion, given the tremendous benefits and advantages available to Canadians.
On that note, I will conclude my presentation. On behalf of the NRCC, I would like to again thank the committee for taking the time to hear our views.
The Chair: Mr. Chauhan, I would like to thank you for maybe setting the trend today. You've been very concise and respected the short time allowed. I appreciate that very much.
We'll now move to Mr. Brian Robertson of the Canadian Recording Industry Association. Mr. Robertson is the president.
Mr. Brian Robertson (President, Canadian Recording Industry Association): Thank you, Mr. Chair.
There might be a little duplication of action that is needed here, so you'll forgive us for going over maybe some of the same ground.
First of all, I want to thank you for the opportunity of joining you today. I am representing the 31 members of the Canadian Recording Industry Association. That membership comprises the major record companies, the leading independent Canadian-owned labels, and all of the manufacturers of CDs, DVDs, tapes, and, yes, even vinyl, which is still being produced. In all, the membership represents in excess of 95% of the sound recordings manufactured and sold in Canada.
As you will all be aware, CRIA has already filed a more detailed written submission, so in this brief but valuable window that is available to us today we will concentrate almost exclusively on the issue of the ratification of the WIPO treaties.
First of all, I want to express my deepest appreciation to the chair, to the members of the committee, and in particular to Mr. Bonwick for the strong and decisive action that was recently taken by this committee to motivate the government, as you've heard from the minister, to move ahead expeditiously on the ratification of the treaties.
This remarkable initiative by Mr. Bonwick and yourselves has been received, needless to say, extremely positively by not only the members of CRIA but the tens of thousands of other Canadians in the intellectual property field who are represented by the 34-member Copyright Coalition of Creators and Producers, of which I am the co-chair.
It is revealing to contrast the resolve of the heritage committee with the abject failure of the government to ratify the WIPO treaties despite six years of review and consultation. We have a situation here of copyright officials who actively participated in the creation of these treaties in the mid-1990s. They acknowledged the need even then for the new measures of protection for rights owners in the digital and online environment. This was in 1994 and 1995. They supported their birth in Geneva in 1996 and witnessed Canada's subsequent endorsement in December 1997.
On December 18, 1997, the Department of Canadian Heritage issued a press release that stated:
|By committing itself to the treaties, Canada is sending a clear signal that it intends to continue its modernization of copyright law in order to better adapt it to the digital environment.|
This is six years ago, remember.
With great insight they continue:
|The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty are designed to establish international minimum standards in the area of copyright and related rights. This is especially important in the digital world given the incredible ease and speed at which works can be reproduced and disseminated around the world and the fact that business is increasingly done electronically.|
That was six years ago. In these intervening six years the two departments have conducted extensive consultations with every organization and individual who has even the remotest interest in this process. They have also commissioned numerous studies to provide them with input on the treaties that they themselves enthusiastically helped create eight years ago. Indeed, we understand that the interest level by the department is so high that they are still conducting studies.
If you detect a degree of frustration and indeed even cynicism creeping in here, Mr. Chair, you must forgive me, because I am a survivor of the last copyright revision process, a 10-year odyssey to pass Bill C-32. The seemingly dysfunctional process that I observed there seems to be still alive and well in the WIPO process.
However, from a positive point of view, Mr. Chair, I do want to go on the record as clearly establishing that the Minister of Canadian Heritage, Sheila Copps, was instrumental in the treaties being signed in the first place in 1997. And she has shared with a lot of emotion, as you've heard today, our frustration with the interminable delays in the process since then. She was the primary reason why Bill C-32 was finally passed in the first place, and has supported a fast ratification process of the treaties from day one.
Part of the problem here, as you will recognize, and the minister mentioned this herself, is the double-barrelled approach to copyright revision: Industry and Heritage. Industry has not had the continuity of leadership at the departmental level, and the results are transparent.
Additionally, it is only in the last 12 months that Minister Rock has had a chance to be fully briefed on this process, and since that point he has been very supportive.
Let me put this briefly into an international perspective. Some 51 countries originally signed the treaties. In the intervening years 42 countries have ratified them, including such G-8 powerhouses as the United States and Japan. In addition, the European Union has passed a copyright directive that will soon lead to ratification by every major European country. Already a number of G-8 European countries, including Germany and the United Kingdom, have implemented legislation that will bring the substantive provisions of the WIPO treaties into force in their territories.
Canada is at risk of becoming one of the last major technologically sophisticated countries to enact WIPO, and the only reason for this is that we are mired in a bureaucratic process that is holding hostage Canada's creative and intellectual property, which as of today represents one of our greatest potential export opportunities.
Let me turn now, if I may, Mr. Chairman, to a very realistic issue, and that is the health of the Canadian music and recording industries.
As the original government media release of December 18, 1997 stated:
|The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty are designed to establish international minimum standards in the area of copyright and related rights. This is especially important in the digital world given the incredible ease and speed at which works can be reproduced and disseminated around the world and the fact that business is increasingly done electronically.|
That statement was made in 1997, before Napster, before the epidemic of so-called file sharing and so-called free music. This euphemism has been allowed to persist long enough. If you aren't obtaining it legally, then this isn't sharing, it is stealing, plain and simple. If the concern was being expressed by the government six years ago, why has the ratification process been languishing through the last four years when more than $425 million has been slashed from the retail sales base of the Canadian music and recording industries? This is a sales drop that directly mirrors the rise in the theft of music online.
Canada was the first country in the world to experience sales declines. Why? Because we have the highest per capita penetration of high-speed Internet in the world and one of the highest levels of computer use. Our young people are also arguably the most techno-literate group in the world. This is laudable except for the fact that it is this generation that has grown up with stolen music at their fingertips and an apparent disdain for buying it. Staggering numbers of young people know that what they are doing is wrong, yet they believe it is morally acceptable to break the law.
Let me also put this to you, very importantly, in human terms if I may. The industry has lost 30% of its retail sales base, and let me tell you what that translates to. It means corporate losses where there used to be profits that would be reinvested back into our culture; it means hundreds of lost jobs in all sectors of the industry; it means devastated families. In cultural terms, it means drastic reductions in opportunity for Canadian artists and Canadian music, it means careers that will never get off the ground and music that will never be heard.
The Canadian music industry is facing a crisis of unprecedented proportions, but it is trying to address it as proactively as possible, currently investing over $1 million in trying to educate young people on the need to support the artists and the music that they purport to love. We are about to invest further millions in a dialogue with parents and educators. We are overseeing the introduction of new and legal online music services that offer potentially hundreds of thousands of songs that can be downloaded and enjoyed for as little as 99¢.
Indeed, a new Canadian-owned service, Puretracks.com, has recently been launched, and others will follow. This initiative has been entirely financed by private industry, with no assistance from the Government of Canada at all. An historic opportunity has presented itself, and in order to make the digital delivery of music possible in Canada millions of dollars have to be invested in new business models that rely on secure digital delivery systems.
The WIPO treaties were introduced seven years ago in order to provide this very security. They are the benchmark for the way copyright owners exercise their rights in a digital environment.
Under the current Copyright Act, shockingly, copyright owners have no exclusive right to control the transmission of sound recordings. WIPO will address this.
By way of example, the treaties confirm protection of traditional copyrighted materials and distribution mechanisms. They clarify how copyright and related rights apply in the electronic environment, and they protect against hacking and the circumvention of technical protections applied to copyrighted products.
More than anything else, these treaty provisions protect our culture. Without this protection, Canadian companies that are currently making these extraordinary investments will be left swinging in the wind, essentially and apparently abandoned by a bureaucracy that seems to favour intellectual property debates over the commitments its government made six years ago.
You can therefore, Mr. Chairman, perhaps understand how timely the committee's intervention was in so positively supporting Mr. Bonwick's motion to move the WIPO ratification process forward without any further delay. The Canadian music industry thanks you again for this bold support of our culture.
And if it is of any help at all to the committee, the Copyright Coalition, which I mentioned earlier, would be happy to supply a guideline document to you for draft legislation. We'd be happy to help you in this process.
That concludes my remarks, Mr. Chairman. Thank you.
The Chair: Thank you, Mr. Robertson.
Certainly we would welcome the suggested draft, and whatever documentation you would like to submit to us would be most welcome. If you could just send it to the clerk, it will be distributed to the members after translation.
Thank you very much.
Mr. Brian Robertson: I'd be happy to.
Thank you, Mr. Chairman.
The Chair: We will now come back to ADISQ, that is to Ms. Solange Drouin, the Director General and Vice-President of Public Affairs, and Ms. Lyette Bouchard, the Assistant Director General.
Mrs. Solange Drouin (Director General and Vice-President of Public Affairs, Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ)): Thank you, Mr. Chairman.
Ladies and gentlemen, members of the committee, first allow me to thank you for having invited us to appear before you to discuss and exchange views on the issues related to this important public process.
Before speaking about the various issues you called upon us to address in relation to your recent paper, allow me to say a few words about ADISQ. Many of you are familiar with ADISQ, but I see some new faces, so I will be brief.
ADISQ is a non-profit association that was founded in 1978; we are thus celebrating our 25th year of existence this year. For 25 years this association has represented producers of records, entertainment and videos. These independent producers from Quebec are responsible for more than 95 per cent of the albums recorded by French-speaking Canadian artists. Twenty-five years ago, ADISQ's activities mainly revolved around gala productions—of the type you most certainly saw two weeks ago—but for the past 15 years we have diversified our activities. We are involved in broadcasting, business funding, work relations, training, and, of course, copyright. I believe that we, like all our colleagues here today, were important players in the last review of the Copyright Act, a decade-long process that that ended in 1997. Today, therefore, it is in our capacity as representatives of independent producers from Quebec interested in the development of intellectual property rights in Canada that we are appearing before this committee.
You invited us here today to comment, among other things, on the exhaustive nature of the list of the major problems that need to be addressed within the framework of the Copyright Act review. With all due respect for those who drafted the report entitled Supporting Culture and Innovation, we submit to you that there are major gaps in the list of proposed topics. In fact, we noted those gaps in the brief we presented in September 2001, during the consultations on necessary provisions in a digital age.
The first of these major shortcomings, that we already raised and that I will speak about further, is the exemption provision, namely section 68.1(1) of the Copyright Act, that I will briefly summarize. Before doing so, I would like to recall that in 1997-1998, as everyone surely knows, a neighbouring rights system was established in Canada whereby producers and performers would finally be remunerated when their songs, or their albums were played, for example, on the radio. In order to assign a value to that right, we, like others, had to appear before the Copyright Board of Canada, which had the mandate to assign an economic value to that right.
The work was done and the commission decided that radio stations would pay 1.44 per cent to those entitled to neighbouring rights. However, in the Copyright Act, the Canadian government provided for two exemptions that would reduce the amount of royalties that would have been collected if the full amount of the tariff had been collected. I imagine that the purpose of this government decision was to provide for a harmonious introduction of this system to all of the partners. Under the first of these exemptions, notwithstanding the tariffs approved by the board, these tariffs would only be gradually introduced, that is to say one-third of the tariff would be required of broadcasters the first year, two-thirds the second year, and three-thirds the third year. As you can well imagine, this exemption has now run out.
The other exemption is still in the bill, and that is the famous clause 68.1(1) clause that I mentioned. What does 68.1(1) say? It says that notwithstanding the tariffs approved by the board, all radio stations will only pay $100 in royalties—instead of 1.44 per cent—on the first $1.25 million of annual advertising revenues. That means that a radio station with an annual income of $50 million will only pay $100 on the first $1.25 million, instead of 1.44 per cent of its advertising revenue.
I respectfully submit to you that this exemption should no longer be maintained and that it should be withdrawn from the Copyright Act. I know that I am not alone in thinking this. CRIA is of the same opinion even though it was not raised in their presentation; there were other points to address as well.
In fact, the Copyright Board, when it ruled on the first tariffs for commercial radio, clearly indicated that even though the radio industry had been through some difficult years, its profit margins had gone up and it could have paid the full tariffs.
I would further submit to you that if this was true in 1999, it is even more so today because the radio industry is a healthy industry. Profits in the radio industry have risen by 300 per cent between 1995 and 2002. This industry has now exceeded $1 billion in revenues across the board.
In comparison, those eligible under the neighbouring system, that is producers and performers, would have received $11.3 million if the royalties had been fully paid, if there had been no exemption in the act. Because of the combined effect of both exemptions, only $1.9 million was paid out the first year. The second year, because of the accumulated effect of both exemptions, $3.8 million was paid out and finally, in the third year, instead of collecting $11.3 million we only collected $5.7 million, because of subsection 68.1(1). That is a very serious loss in potential earnings for those Canadians entitled to them and, obviously, for the members of the Rome Convention.
I will now let my colleague, Lyette Bouchard, speak to you about the other two serious shortcomings.
Ms. Lyette Bouchard (Assistant Director General, Association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ)): Thank you, Ms. Drouin.
The second issue that we feel should be considered is the protection of orphan right holders under the neighbouring rights regime. Contrary to authors, in order to benefit from their rights, producers and performers must be part of a collective. So, when a neighbouring rights tariff is set by the Copyright Board, producers who have failed to join a collective, that is the orphans, are deprived of the royalties owed under that right. However in other regimes established under the Copyright Act, there are provisions protecting orphans.
Therefore, ADISQ believes that some simple changes could be made to the neighbouring rights system, based on what already exists in the act, in relation to orphan right owners, producers and performers.
The third issue that we feel should be addressed is that of the responsibility of suppliers of music file sharing software. Pirating of sound recordings on the Internet is generally the work of individuals sharing digital music files using software such as Kazaa. This isn't anything new. We think we all agree on the reprehensible nature of the distribution of this type of sharing software which is used, for all intents and purposes, for pirating.
ADISQ believes that people distributing this type of software should have civil and criminal responsibility for this under the Copyright Act. ADISQ therefore submits that the act should include provisions allowing for criminal and civil proceedings against those distributing music file sharing software.
I will now turn the floor back over to Ms. Drouin.
Mrs. Solange Drouin: Let it be understood that what Ms. Bouchard and myself have presented up until now are additional and even urgent problems that we would like you to address within the framework of the committee's initial priority review.
In terms of the timeframe and the guidelines—issues you also asked us to consider—on page 42 of the report entitled Supporting Culture and Innovation, certain criteria were clearly established to provide a rational guide to the public policy considerations for determining which issues ought to be examined.
I will not read all five criteria. However, we feel that these criteria should guide your work. Unfortunately, in terms of applying them, we feel that the timeline provided for at the end of the report, will not in the end give the results that could have been obtained if the criteria had been consistently applied. We therefore propose that you keep these criteria and that you undertake another evaluation, because the context has now changed.
I will focus on only one of these five criteria, because it affects the music industry in particular. It is the criteria that urges you to prioritize an issue where action by the Government of Canada is dictated by an externally-driven timeline.
As Mr. Robertson pointed out, the music industry is suffering a veritable carnage. I don't have to draw a picture for you. Mr. Robertson has already done that rather well. However, I would like to mention some figures, because figures are always interesting.
There are one billion files available on free swapping sites. There are 2.6 billion unauthorized files that are swapped every month. There are 100 million users of software such as Kazaa and others, in the world.
Therefore,—I won't repeat Mr. Robertson's speech—we submit to you that these facts require rapid action in implementing the WIPO treaties.
The Chair: Thank you very much, Ms. Drouin and Ms. Bouchard.
I will now give the floor to the representatives of SODRAC and SPACQ, Ms. Claudette Fortier and Ms. Francine Bertrand-Venne.
Ms. Francine Bertrand-Venne (Director General, SPACQ, Société professionnelle des auteurs et des compositeurs du Québec et Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada): Good afternoon. I am both a lawyer and the Director General of the Société professionnelle des auteurs et des compositeurs du Québec, which was founded in 1981. I am accompanied today by Ms. Claudette Fortier who is the Copyright and Business Development Advisor with SODRAC, their Director General, Mr. Alain Lauzon, Ms. Ève-Marie Gravel, Director of the Rights Service and the Vice-Chair of the Board and founder of SPACQ and President of SODRAC, Ms. Diane Juster, author and composer.
Authors and composers in Quebec established SPACQ to ensure recognition and the defence of rights related to the use of their work. In so doing, they created SODRAC, the only society in charge of managing the reproduction rights of authors and publishers of musical works. Today SODRAC manages the rights of several hundred thousand Canadian and international authors and rights holders in the field of musical and artistic works.
Pursuant to the Copyright Act, these creators are entitled to be remunerated for the use of their works. This remuneration constitutes their sole source of income. Despite tremendous external pressure, we would point out that the government is primarily responsible for protecting the rights and interests of those concerned first and foremost by this legislation—the authors themselves.
We would have preferred that the act provide for the amendment or review of the act as a whole, but we are aware that several issues perhaps require a more in-depth review. Let us recall that in 1997, authors had their rights expropriated on a massive scale through the introduction of a significant number of exemptions, and thus are paying the cost of striking a so-called balance between rights owners and users.
We will now speak to the more specific issues that affect the people we represent.
These days, when digital technologies permit the unrestricted manipulation and altering of protected works, the issue of the moral rights of authors is a prime importance. It remains vital therefore to establish as a fundamental rule respect for the integrity of works, in the case of both original works and their reproductions.
As to the provisions of the act which permit authors to waive their rights, it is critically important, in our opinion, that unless this part of the act is simply eliminated, express provision be made for the waiver of these rights to be in writing and signed by the authors or their heirs.
In order to permit rights holders to exercise their rights fully in this new technological world, legislators must amend the act in order to provide for effective legal sanctions against the circumvention of technological protection. Indeed, persons using circumvention technologies to infringe copyright by disabling protection technologies should be liable to sanctions under the Copyright Act.
With respect to the term of protection, the act must be amended in order to extend the term of protection to the life of the author plus 70 years, so that Canadian authors may enjoy a term of protection equal to that in European countries and in the United States.
In terms of the responsibility of Internet service providers, legislators must not introduce provisions limiting the responsibility of access providers. The Copyright Act must protect creative works and enable authors and right holders to benefit from the economic life of their work. Each use, whatever the type of technology used, from the oldest to the newest, must generate royalties for the creators.
In terms of collective management of copyright, collectives established, managed and financed by their members provide collective strengths to authors and rights holders who would otherwise be at a disadvantage in one-on-one negotiations or who may even be incapable of exercising some of their rights.They are mandated to facilitate the acquisition of the right to use the works in their collection and to ensure that authors and rights holders receive fair and just remuneration.
The necessity and effectiveness of these collectives was in fact recognized at the last review of the act, in 1997. In creating SODRAC, the SPACQ wanted to set up an agency for the reproduction of musical works of authors and publishers. This agency, which is unique in North America, reflects the spirit of copyright, because it gives creators and rights holders the opportunity to manage their own works.
Mrs. Claudette Fortier (Adviser, SODRAC, Société professionnelle des auteurs et des compositeurs du Québec et Société du droit de reproduction des auteurs, compositeurs et éditeurs au Canada): I will take over.
As users of the Copyright Board of Canada, with the introduction of ever-increasing responsibilities and fees, we hope the Board will receive adequate funding to carry out its mandate as quickly as possible and to perform its duties. You will appreciate that we simply want to highlight some of the points raised in our brief.
With respect to the authorship of films and videos, we support the position of French legislators, namely that the producer, the screenwriter and the composer of screen music should be credited with the authorship of a work and that anyone who has contributed some creative input to the audiovisual production process should be considered a co-author.
Since SODRAC also manages artistic works, our view with respect to the authorship of photographs is that the attribution of rights by fictio juris to someone other than the true author no longer serves a purpose. In addition to creating considerable confusion frequently in practical terms when it comes time to establish the true author/rights owner, it can cause significant prejudice to the creators of this type of work. Copyright on photographs must therefore be given to the person who created the work, namely the photographer, regardless of how the work was produced.
As regards the resale royalty right, we consider this right must be accorded to the creators of Canadian artistic works in the present context. Apart from the fact that we consider it totally justified for them to benefit from the appreciation of their work just as sellers and collectors currently do, we consider it important to point out that this right is now enshrined by a directive in 15 countries of the European Union and that its application has now been expanded to include Great Britain, the Netherlands, Ireland, Luxembourg and Austria. We would point out as well that we support the recommendations made in the brief presented by DAMI©, which is a coalition of creators.
As regards the reproduction right for artistic works, in view of the precedent established by the Supreme Court in Théberge that transferring an image from paper to canvas was not a reproduction within the meaning of the act, we think the legislator must make amendments that would enable the authors concerned to exercise control over this type of operation and establish its conditions.
I'm going to close with a point that is very important to us. As you know, I was involved in all the discussions surrounding the last review, and those for the 1988 review as well. It seems like we have been talking about the Copyright Act since 1976. I would now like to deal with the issue of the exemption for ephemeral recordings, further to the comments made in the report.
There is no need to amend subsections 30.8(1) and 30.9(1). Through licences, SODRAC has been able to authorize all the reproductions required for broadcasting activities. Before the introduction of this exemption, broadcasters were violating the reproduction right of authors. Since the introduction of this exemption in 1997, the procedure that went with it created some constraints for broadcasters, and the general licence has alleviated these to a great extent.
I would also like to add one comment about private copies. As the representatives of the beneficiaries, that is the authors of songs, as regards the system on copies for private use, we would ask Parliament to keep the system as it was originally introduced. We would point out that the tariff is established by the Copyright Board, and this ensures equity between rights holders and users.
I would like to thank you for your attention, Mr. Chairman, ladies and gentlemen.
The Chair: Thank you very much, Ms. Fortier and Ms. Bertrand-Venne. I had to smile when you mentioned ephemeral rights, Ms. Fortier, because Mr. Abbott was not here.
Mrs. Claudette Fortier: You're quite right. I noticed he was not here.
The Chair: I'd now like to turn the floor over to the representatives of the Copyright Consortium of the Council of Ministers of Education. They are Ms. Wanda Noel, Legal Counsel and Mr. Roger Doucet, the Deputy Minister of Education for New Brunswick. We'll begin with Mr. Doucet.
Mr. Roger Doucet (Deputy Minister, Department of Education (New Brunswick), Copyright Consortium of the Council of Ministers of Education, Canada): Thank you, Mr. Chairman, ladies and gentlemen. My colleague, Ms. Wanda Noel, and I are very pleased to be here today.
As a representative of the Copyright Consortium of the Council of Ministers of Education of Canada, I would like to start by thanking you for inviting us to appear before you. My colleague and I would like to take this opportunity to tell you about the Consortium's comments, concerns and recommendations on copyright in the digital age.
The Consortium, which is made up of the Ministers of Education from all provinces and territories, with the exception of Quebec, welcomes this opportunity to work with the committee to stimulate culture and innovation.
As you know, copyright issues in the digital age are of crucial importance to the education community. My experience, first as a parent, has allowed me to see that students can be affected regularly by copyright. For example, students studying democracy in Canada may be required to do some research on the Internet, where they may find many sources of information, including biographies of members of Parliament, photographs of the Parliament buildings, recordings, and debates. If these students include these materials in their homework, they have committed an offence under the Copyright Act, unless all the sites and all the material such as the MP's site and the Canadian Encyclopedia site, where this information appears, state clearly that reproduction of the material is authorized.
This type of situation, as well as copyright violations, are an everyday occurrence, unfortunately, in the education system throughout the country. Since we have an interest in strengthening and complying with copyright, we must work together to understand the problem and try to solve it.
As you probably know, the Consortium's recommendations focus on one main objective which, in the public interest, seeks to guarantee that students and teaching staff may enjoy reasonable, legal access to digital material.
It will come as no surprise to you that as regards the federal government's copyright reform program and process, the Consortium is very pleased that the government plans to deal with the issues of education and access as a first step. However, the last reform and its impact on education taught us some lessons that compel us to urge the committee to ensure that the current review exercise take into account certain guiding principles, namely: legislative balance, consistency of public policy and the effectiveness of the practical considerations.
I would like to address some of these principles, if I may, briefly.
The first principle, legislative balance, is one that few would dispute. Virtually all involved in copyright reform in Canada agree that the process, like the Copyright Act itself, must be balanced for the public good.
In Canada and all over the world, copyright laws achieve balance by providing rights to creators and limiting those rights by exception for some users. The consortium believes the structure of Canada's Copyright Act in the form of rights and exceptions must not be abandoned in this reform process.
More specifically, since the copyright reform process was launched two years ago, the consortium has advocated strongly that the Copyright Act needs to be modernized and amended to allow students and teachers to fully harness learning opportunities afforded by digital technologies.
I understand that you recently met the Canadian Teachers' Federation and the Canadian Association of University Teachers and that both organizations spoke about the need for an educational amendment to the act. Let me enforce the point by emphasizing that the educational amendment is broadly supported by the public because it is one that simultaneously supports rewarding creators and providing access to users. The amendment as proposed by the consortium is limited in its application to materials that are free, which means it can coexist with copyright protection for materials that are subject to fees and for which fees should be respected and awarded. This distinction between fee and material that is free is one that reflects the notion of balance between rights and exceptions.
The final point I would make about achieving legislative balance is the necessity of carefully considering both rights and exceptions throughout the copyright reform agenda and process.
The second principle that I wish to address briefly is that of cohesive public policy. Both orders of government in Canada, federal as well as provincial and territorial, have articulated the objective of making our nation a world leader in the information age. Legislation, public policies, and programs all point in that direction and reflect considerable investment by all levels of government and partners in providing this.
To name just a few examples, Canadian Heritage is currently collaborating with the members of CMEC with a view to developing digital content that is of value to students and teachers, called the Canadian Culture Online program. Industry Canada is collaborating with members of CMEC to develop the infrastructure supporting learning with digital technologies, whether it be face-to-face or online learning. In both cases, copyright reform and the committee's position in this area have the potential to enrich or impede learning opportunities.
On one hand, students and teachers are encouraged to master digital technologies, and on the other hand, they are confronted with complex and often conflicting messages about what they can or cannot do with such technologies according to copyright law. There is a need for clarity and cohesiveness in public policy in this regard. The consortium would therefore counsel an approach to copyright reform that sustains a cohesive public policy framework.
Lastly, I'd like to address the third principle, which addresses and highlights that of ensuring that copyright reform will result in an effective enforcement of copyright awareness and respect. While we all have a part to play in achieving copyright awareness and respect, the Copyright Act alone can provide the broad framework that gives shape to policy, programs, and practices.
Ultimately, for Canada's copyright law to be effective in terms of its enforcement in an educational setting, it must be structured in such a way as to allow students and teachers in schools or universities to truly understand what is permissible for educational purposes and on what we must supply copyright and must pay fees to access.
It is with this objective in mind that the consortium has proposed that copyright reform address a distinction between Internet materials that are free for use or to which fees apply, and that the act be modernized to include rights and exceptions that would be applicable accordingly.
As it stands, the Copyright Act must still address such outstanding questions related to education and access. Today and in the coming months, my colleagues in the consortium and I look forward to contributing actively and productively with you and all parties involved in finding the appropriate solutions to this.
For closing remarks, I'd like to ask my colleague, Wanda, to say a few words.
Ms. Wanda Noel (Legal Counsel, Copyright Consortium of the Council of Ministers of Education, Canada): I asked for a minute at the end of Mr. Doucet's presentation because I've been sitting here listening to the presentations that have been made, and the thrust has been that as the committee proceeds with its work, the government should very quickly implement the WIPO treaties. I think it's important that as this work progresses, the members of Parliament hear and understand that there is more than one point of view with respect to WIPO treaty implementation.
I'm here today with a hat on representing a client, but I'm going to try to elevate this. Your press releases said you wanted to talk about top-of-the-tree issues as members of Parliament. If someone in the academic community said to you, I think you have to think quickly about rapid implementation, it may not be a stakeholder making that representation but someone who's neutral. I'm going to table with the committee today--and it's quite timely--an article that was written by Professor Michael Geist, who is a leading person in Internet law and Internet technology. The title of the article is exactly what Mr. Robertson and Mr. Chauhan said, “Will copyright treaty benefit Canadians?” I think that as members of Parliament you have to answer that question.
There's no question that implementation of the rights under the treaties will benefit rights holders. We brought forward--the last two witnesses--a different perspective. We said you have to hear all the points of view. I'm going to read you one sentence that's the concluding statement in Michael Geist's article. As I said, this is an academic saying this to the community at large, not a stakeholder. He writes, “The recent recommendation from the standing committee”--that's you guys--“to fast-track the ratification process before all stakeholders have spoken would squander our last mover advantage...”. I think that's something you should sit up and take notice of.
Thank you, Mr. Chairman.
The Chair: Thank you very much, Ms. Noel. You've let the cat out among the pigeons, I see.
Copyright always means polarization. People feel very strongly about conflicting issues, and it makes it interesting but also very complicated. The other day when we finished the session, I think on Tuesday, I remarked that I thought we wished Solomon could be reborn so he could come and find a solution that would meet the wishes of the various parties. Anyway, it's been very interesting.
I'll open the questioning with Madam Frulla.
Ms. Liza Frulla: Thank you very much.
Thank you for being here.
I want to reassure you, Madam Noel, that we're hearing all points of view, and that even with the motion, we're not trying to fast-track anything. I think you've heard the minister saying that since 1997-98, and we're in 2003. So after hearings and hearings, if we want to come up with something, we have to at least have a deadline to work on it, and a closer deadline rather than a later one, because it could take another five years or more.
I'm coming back to what the minister said, and my question is directed to you, Mr. Robertson. The minister said that it seems that again, with everybody participating, we cannot at least get a draft; it's not possible to get a draft in a few months. We're talking about a deadline of 2004-05 to ratify WIPO. And she said if we could put out something they can at least work on, it would help a lot. So my question is, is it possible? Is the request of the minister possible, taking into consideration also the different parties? Is that possible?
Mr. Brian Robertson: Yes, it's very possible. In fact, the Copyright Coalitionof Creators and Producers, of which there are 34 members representing a very wide range of intellectual property owners and creators, actually has been working on a draft. I think we can probably bring that forward very quickly to the committee, probably within, I would say, two weeks. That's my view. We'd be very happy to do it.
Ms. Liza Frulla: Our suggestion is if there's anything that can help, please do it.
Coming back to you, Mr. Doucet and Madam Noel, I'll say that another consideration is that you're not the only ones who are scared of this, saying it would be hard to give access for educational content. Do you feel we are going down that path? There are exemptions now that really protect the users and the rights owners.
Ms. Wanda Noel: You are right that the copyright law in Canada and indeed copyright laws all over the world are structured with rights and exceptions. The exceptions that exist in the Canadian act now don't deal with digital technology. One of the reasons the revision process is taking so long is that you have to deal with all of the stakeholders who are affected by the legislation. If new rights are granted, copyright laws are always structured that those rights are limited and balanced by exceptions for the perceptually disabled and for libraries, archives, museums, and educational institutions.
That policy work is very difficult, and there has been some progress made because there have been consultations taking place between some of the people at this table, the Council of Ministers, and a number of other educational organizations as well. We've made some headway, but we're not there yet. That process is long and tedious, and as the minister mentioned earlier, it's always very acrimonious.
That's one of the reasons the delay has--
Ms. Liza Frulla: Madam Fortier and Madam Bertrand-Venne would like to intervene.
Mrs. Claudette Fortier: I'd like the committee to know that a task force was set up by Heritage Canada and Industry Canada together with the teaching institutions and the rights owners. Several meetings were held and we heard what the schools were asking for. Of course, if they're asking us to provide an exemption for unprotected material on the Internet, then you don't need that because that material is not protected.
The problem is knowing what is protected and what is not. We made some proposals. We have agreements with the Quebec Education Department. There are negotiated licences for the teaching institutions and that's what we suggested.
As for the collectives, we're ready to come up with a general licence for teaching institutions. They could take all the material they want and the rights holders would be compensated. The problem is with music. Right now, all the music and the recordings available on the Internet are there without permission and that is a problem. We excluded music.
You all read this morning that your favourite son, Wilfred LeBouthillier, has a record coming out next week. His record is already available on Kazaa. All his records are on Kazaa without authorization. If the teaching institutions want to have limitless access to all that, then we'll wind up with a multitude of unauthorized music files. I think Ms. Noel already knows what I think about that, but I wanted the committee to know that, at the very least, those discussions did take place amongst us.
The Chair: Does that answer your question, Ms. Frulla?
Ms. Francine Bertrand-Venne: I'd like to add that all the exceptions that have already been subject to debate within the European community are already in our Canadian legislation. That's what I was alluding to in the brief when I said that, the last time, we had suffered a certain number of expropriations. So any limitation is both a decrease in revenue for creators and for right holders in general. So, somewhere along the line, there's the principle.
Another potential stumbling block is that in Canada, we have both civil law and common law. Civil law legislation establishes principles. Common law, on the other hand, establishes a list based on use and practice. We often trip ourselves up with that list and forget the basic principle. I simply want you to understand that we certainly do want our works to be accessible in schools. However, if you think about it for two minutes, the problem we have is that we're paying everybody who works in the education field and we're not paying for works of authorship. There's something not quite right with that. It's true that we work with the community, but I just want to make you understand how important this is for authors. Any limits on their rights seriously undermines the overall respect for the use of their work.
The Chair: Mr. Bonwick.
Mr. Paul Bonwick: Thank you, Mr. Chair.
I want to try to touch on two issues in the limited time we have. The first relates to the minister's response with regard to her position on the review of the Broadcasting Act.
Although we don't have quorum, I'm going to propose that the chair give consideration to sending a letter through to the Prime Minister's Office asking that there be a coordinated effort brought forward by the various departments to address the illegal use of satellite dishes, or the black market.
Clearly the minister was stating that the so-called machinery of government can only be coordinated through that office and not through her own. I don't think this is something we should be allowing to go through to the spring or the fall of 2004. The committee felt that it was a priority in the last session or in the last sitting. I think if we could send that kind of letter--there was consensus at committee that it was a big issue--to the Prime Minister's Office perhaps in the late winter or early spring, the Prime Minister might be able to coordinate those kinds of efforts with CCRA, Industry Canada, the Solicitor General, and Canadian Heritage, just to name a few.
So if the chair would give some consideration to sending that letter through to the PMO, I would appreciate it.
The Chair: I think it's a very good suggestion. I can't tell you that I will do this without a quorum. What I will do is drop a line to all the members to see if they agree, and if there's no objection, I will gladly send that letter. I think it's a very good idea.
Mr. Paul Bonwick: Thank you.
The second point I would deal with is the discussion surrounding the WIPO ratification. What I find interesting over the course of the last couple of weeks is some of the words, the language that's being used. I've written some of them down: “quickly”, “rush” and “fast-track”. I guess I live in a different world when we start using words like those about a six-year process.
I live in a different world when two weeks ago we heard from department officials that based on the timelines they have to work with in concert with the legislative branch of government, we could be dealing with something that, unless it's treated as a greater priority, would be brought forward in the fall of 2005, effectively creating an eight- or potentially nine-year window from becoming a signatory to ratifying. To me, that's not rushing or fast-tracking. Quite frankly, that's just not treating it as a priority.
So I guess we are going to deal with it in a balanced fashion, and I believe I have that kind of confidence in the committee.
On the issue with regard to, again, using this term “the machinery of government” and coordinating this, the minister did not provide a written response. So for the record, I guess what I have to do is rely on my interpretation of what the minister said in response to the motion that was brought forward two weeks ago. If I understood her properly, she stated that she supports the intent of the motion and that she gave instructions to her officials to do what was necessary to bring forward the draft legislation sometime in February of next year, but the challenge was the interdepartmental issues in coordinating those efforts.
I'll go out on a bit of a limb and suggest that I have enough confidence in industry officials, and more particularly the minister, that if they recognize this thing as a priority, they will be able to do exactly that, follow the wish or the desire of Parliament in this.
I'm providing my overview rather than questioning, because I think the witnesses have properly illustrated their particular positions, but the last thing I would say is to Ms. Noel and others who are suggesting that over the six years we might be fast-tracking to try to get the ratification process going--because of course we're not ratifying in February.
Would you recognize that we're asking for draft legislation, that the committee would have an opportunity three months from now to review the draft legislation, to hear from witnesses, to have witnesses bring forward proposals, and that it would be an open and transparent process where you would be engaged in it, so it's not about rushing and coming up with a final determination on February 10, 2004, but rather simply creating a greater emphasis on behalf of the departments? Is there a comfort level within the witnesses' minds to work under those timelines, providing it is open and transparent and gives an opportunity for input?
Ms. Wanda Noel: The short answer is no, because the draft legislation that Mr. Robertson will be bringing forward will implement the rights aspects of the WIPO treaties. They will not deal with the balancing questions.
You heard from the Canadian Library Association. We're here today to say that Internet access for educational purposes is something that needs to be addressed in that legislation, and I have every faith that the witnesses representing the creative community can come forward with that legislation. It will not be balanced.
We saw in 1997--as did Mr. Lincoln, and you, Mr. Bonwick, and certainly Mr. Abbott--what happens when legislation comes forward in a copyright reform process that doesn't address the full range of stakeholder issues. I don't know how many times the chairman said to witnesses in 1997 that the digital issues would be dealt with separately. It was a very difficult thing, and the legislation went through not dealing with digital. As a result, we have, I guess, a very difficult process now. So--
Mr. Paul Bonwick: Where I'm being challenged, Ms. Noel, is in your lack of confidence in the committee's ability to hear you out with regard to what may come forward. You're already outlining your judgment on what may come forward and saying it's not going to be what you want.
I'm saying there's a process in place for you to come forward on February 11 and say that this is not what you want, that you envision these conditions, these provisions within the legislation to safeguard what you believe to be important. So I'm simply talking about process rather than content.
On the content, I believe we have the structure in place; I'm talking about the process of getting it moving along not in a fast process but a reasonable process. So I'm saying I would hope that you would have confidence in the members of Parliament to hear you out in February and make the necessary changes if they thought it was in the best interest of Canadians.
Ms. Wanda Noel: I would think to have all the stakeholders who are going to be directly impacted by the WIPO treaty implementation legislation, you don't simply come forward with implementation of half of the treaties. You have to come forward with implementation of all the treaties, including the extension of exceptions into the digital environment. You're implementing half of them, not all of them--unless, Brian, are you going to draft exceptions. I don't think so.
The Chair: Just hold it a minute, now. I don't think it should be a sort of little dialogue between you.
What I would like to suggest is this, Ms. Noel. Mr. Robertson is going to send a draft to us, and it will be for the committee to decide how it uses it and how it looks at it and everything. As Mr. Bonwick rightly said, we're not going to take this as the gospel and the final word. Our job here is to look at these things, and if you have ideas yourself and you want to present drafts to the committee, by all means do.
We are not saying right here and now that because Mr. Robertson produces a draft, this is a final version that will go to the government. We don't even know how this process will unfold, but at least it will push the envelope. It will get us working. It will start a process and accelerate the work that we feel has been slow, and this was the intention of Mr. Bonwick's motion. So if you do have any ideas, by all means, come forward with them.
Mr. Roger Doucet: Mr. Chair, I think we will provide a draft too.
The Chair: Sure.
Mr. Roger Doucet: I think it's a good recommendation. Thank you.
The Chair: I will now turn to Madame Allard and Mr. Shepherd.
Ms. Carole-Marie Allard: Good afternoon everyone. Thank you for being here. The process may seem a bit scattered, but it's hard for us too.
Before putting my question, I'd like to point something out. Ms. Drouin and Ms. Bouchard, you represent ADISQ and you've mentioned major shortcomings in our report and all that. I'd like you to take what I'm going to say as an observation.
In the area of culture, we've seen all the work that Ms. Copps has done, as she said before, on copyright legislation reform and investing in culture and artists. I was present at the Gala de l'ADISQ and I found it a shame that her name wasn't mentioned to the Quebec community. I'm saying that and I know you're not responsible for it but you also represent the organization. I found that a bit sad in view of all the efforts she made in favour of culture in Quebec to find that she wasn't mentioned in the gala messages. I'm just saying that in passing because mention was made of major oversights. At the last gala, that was indeed a major oversight.
I'd like to get back to Internet service providers. Recently, the committee met with the Canadian Cable Television Association which requested an exemption under clause 2 of the act, somewhat like telecommunications providers.
Today, it's interesting for me to hear you ask us to hold software distributors responsible. Am I mistaken or is this something new? I don't know if anyone else asked for that, but I would like an explanation. Could we simply mention in the act that, henceforth, software distributors will be responsible for music downloaded from the Internet, quite apart from the Internet providers?
Mrs. Solange Drouin: Concerning the software distributors, we're talking about criminal sanctions. Under the current act... Our comments are very much motivated by the fact that in the US, a court—I don't remember which one— held that software distributors like Kazaa were not accountable for anything because they were not the ones authorizing anything. They were merely providing the software and were free of any responsibility.
In our opinion, a lot of people are part of that whole chain and a lot of them are making enormous amounts of money in the process. We think that Internet access providers are a business and we're dealing with this. The issue is being hotly debated in Quebec, and likely will be in the rest of Canada as well. Software distributors are quite another matter. That's why we think it's also important to examine the role they play.
Ms. Carole-Marie Allard: Tell me a bit more about Internet providers.
Mrs. Solange Drouin: Before answering, I'd like to make a comment to reassure you concerning the ADISQ Gala. Ms. Copps was invited the same as everybody else. I was sitting beside Mr. Denis Coderre who was representing Ms. Copps. She did not come because she had other obligations.
Ms. Carole-Marie Allard: I'm not saying she was not invited. I was saying that her name did not appear in any of the messages on the screen. Maybe something was done in an effort to have her name mentioned.
Mrs. Solange Drouin: Yes, all the steps were taken. Everything was done in accordance with the rules.
You asked me to speak about Internet service providers. The process that we at ADISQ have been involved in since last February is not one under the Copyright Act, but rather under the Telecommunications Act. The organization we are targeting is not Parliament, but rather the CRTC. And the objective of this initiative is not to compensate for the rights. That is not the point at all. We think that as regards the Copyright Act, there are some tariffs that are already before the Board and others that are before the Supreme Court. The process must run its course. The compensation that should flow from the Copyright Act is one thing. We must continue our struggle on this front, and we must win it as well.
We have taken another approach, because we think it is just as legitimate to do so. Let me draw a comparison to explain what I mean. At the moment, broadcasters pay royalties—copyright and neighbouring rights—under the Copyright Act. These amounts are paid to authors, artists/performers and producers. Under the Broadcasting Act, they are also required by the CRTC to pay contributions for Canadian development. That's where we are stepping in.
It seems to us that at the moment, Internet service providers are supplying telecommunications services. Telecommunications services have changed a great deal since the last amendments to the Telecommunications Act. At the moment, telecommunications services are not just telephone services. We're talking about the content and the protected works that are transmitted through these providers. We feel that under the Canadian Telecommunications Policy, the CRTC has sufficient legal grounds to require Internet service providers to pour a certain portion of their earnings back into the entire content industry as their contribution to the development of Canadian talent.
This does not cancel out the other procedure, which must take its course. Internet service providers would not be treated unfairly compared to other individuals, companies or entities already involved in broadcasting undertakings. We simply think that this would be fair, given that they are more and more involved in content. Providing this opening would be the least we could do. That is our objective, and it has generated a great deal of discussion. Internet service providers are not very open, but we have dealt with such things before.
Ms. Francine Bertrand-Venne: I would like to add, Ms. Allard, that when the new technology became available, the cable companies in turn said that they were not affected by the Copyright Act. As a result of our efforts and initiatives up to the Supreme Court—the Internet rates were discussed by the Supreme Court—cable companies were held responsible for copyright violations. It is important to remember that historically, these individuals at one point represented the latest new technology. Consequently, we support what Ms. Drouin said. We agree, because SPACQ is often involved in the various matters championed by ADISQ. We do support the comments regarding the philosophy that underlies the broadcasting system. At few years ago, the CRTC decided that this new technology should run its course and that it would introduce regulations later. It is high time the CRTC deals with this as well. The Copyright Act must do so as well.
Finally, what Ms. Noel has asked for are exemptions for the Internet. I hope you noticed it in our brief we are asking that there be no limitations, or at least as few as possible, precisely because these new technologies must be dealt with fully and completely, because our works and intellectual property in general are being used on a massive scale.
The Chair: Mr. Shepherd.
Mr. Alex Shepherd: Ms. Noel, you mentioned that possibly we should delay the implementation of WIPO. That's not an uncommon comment. I've heard it a number of times, the theory being that if we wait till the last, we'll get it right. If we watch other nations implement this, we'll get it right. That seems to be the Canadian way: we'll watch everybody else and somehow we'll get it right.
In the meantime, Mr. Robertson and his group are saying they're incurring significant damages, and in the backdrop of all of this is that technology is driving this whole issue way down the road—way beyond WIPO. How do we reconcile your wanting to wait for a long time with the fact that there are damages occurring currently? I don't know if you acknowledge that there are damages occurring currently.
Ms. Wanda Noel: Oh, yes, very much so.
Mr. Alex Shepherd: How long would you like everybody to be damaged, until such time that we enter...?
Ms. Wanda Noel: Lawyers call that a leading question.
My position and the position of the Council of Ministers of Education is that we don't want to delay WIPO treaty implementation. In fact, we support the rights of creators to be compensated fairly and equitably for the use of their works, wholeheartedly. The position is that in their implementation the treaties have to be implemented in a balanced way, which means you have to deal with the rights as well as the exceptions in the legislation that's going forward.
Let me make one other very brief comment on that. Some other countries have proceeded to implement the treaties, most notably the United States. They were very quick off the mark. They implemented the treaties in such a way that many people think it was the wrong way to do it, and we have had the benefit of learning from their mistakes. Quicker is not always better.
I believe this point has been made to the committee before, but of the major economic powerhouses in the world, only the United States and Japan have ratified the WIPO treaties. We don't have any other major countries yet that have done so. So as legislators you're not alone in struggling with some of these very difficult questions.
Personally, I think on the rights issues it's correct that the legislation can go forward. It's fairly straightforward. The controversy surrounds the other half of it—the balance, the exceptions—and that's what is holding it up. I would invite these other people, if they wanted to, to comment on that, but that would be my view.
The Chair: But Mrs. Noel, isn't it also correct that the European Union is ready now with mechanisms to ratify? And when they do so, that will be 15 major countries and one of the biggest economic blocs in the world that will ratify.
Ms. Wanda Noel: I think I'd have to put on my lawyer's hat and take the answer to that under advisement, because I'm not really well versed in how the individual European Union countries are poised. I know they've been struggling with the very questions you've been struggling with for many years. They went past their EU deadline because they couldn't deal with the issues you guys are being asked to address. It's not a simple, straightforward issue by any means.
The Chair: We'll have a brief question from Mr. Bonwick and from Mrs. Frulla, and then we'll close.
Mr. Paul Bonwick: Ms. Noel has hit on a key point, and it's about balance. That's all I want to close out with, just to assure her that if we're still on this committee in February 2004, I'd have enough confidence in parliamentarians to suggest that it will be balanced.
I don't think parliamentarians are prepared, though, to sacrifice the rights of the creators for an additional two to three years simply because we cannot coordinate our activities between departments and a few interest groups that either do not have confidence in the bill or in our ability. I think that's what we're struggling with. If Parliament can't stand up for creators—and that goes to the very core of who we are as a country, our identity—who do we stand up for? I suggest you should take some comfort that we're going to be balanced, but by God, Parliament has to recognize there are priorities, and one of the priorities has to be defending our creators and supporting our creators.
The Chair: Ms. Frulla.
Ms. Liza Frulla: Mr. Bonwick really summarized what we wanted to say, and we support 100% what Mr. Bonwick said.
I don't want to open a debate here. It's only that
the Internet service providers came to tell us that they could not be held responsible for everything that is happening. They say that what they distribute is like hardware, that it is impossible to hold them responsible. They also say that a technology is being developed for music, among other things, whereby it will be impossible to copy a disk, because it will be encoded directly on the medium.
Mrs. Claudette Fortier: The problem is that at the moment there are millions of copies of disks that are not encoded. The position of the Internet service providers is that it is as though they were opening the door to the store, had us come into the store to pick up the goods and received payment at the same time. This is somewhat the impression we have of Internet service providers.
Let us go back to the time when the precedent was set regarding cable companies and copyright. These undertakings argued that they were merely a tool and a carrier, and they lost their case.
The Chair: In closing, I would like to suggest this, to pick up on what my colleague, Paul Bonwick, and others said. We're faced with the usual dilemma.
We had Bill C-32, and we discovered what it meant. There was tremendous polarization and a great deal of emotion on both sides of the issue. The minister set up a task force to try and see whether the parties could reach an agreement and come up with some practical solutions.
The more you manage to clear up, in the background, the easier it is for us. If you can't get together yourselves and agree on some sort of a formula, then obviously we have to be judge and jury and go ahead in the best way that we think we should.
There are no two solutions. We will eventually decide, because a working group can't get together, and then we'll do the best we can with it.
My suggestion would be that if by any chance, between Mr. Robertson's draft and Mrs. Noel's draft, somehow we can make a draft that makes sense and is acceptable to both of you, and if some formula can be found for the other issues, WIPO issues and so forth, it would really help us, because our task is to go ahead. We don't have any choice.
Parliament has entrusted us to go ahead. By September 2004, we're going to go ahead and make a report. The question is, do we make a report ourselves, or do we make a report with the backing of a certain preliminary consensus? If there's none, then we'll make it. We don't have any choice.
I hope, as the minister suggested, that it will be less polarized than Bill C-32 . I think those of us who sat on it—and I'm sure you will echo the feeling—wouldn't want to go through the same polarization. We hope we can avoid it.
We appreciate very much that you have come here today. It has been very helpful to us. Thank you.
The meeting is adjourned.