Thank you very much, Mr. Chair.
I would like to talk to you about the list of witnesses.
This morning we have the honour and pleasure of receiving two key witnesses from 11:00 a.m. to noon. However, last week, at the last meeting, there were six people. At the last minute, the chair decided not to receive another person. There would have been seven witnesses and that would have made no sense.
There are representatives from organizations who are representing tens of thousands of artists and who have concerns about Bill C-32. Organizations are complaining that they have not been invited. This morning, we would have had time to hear from other witnesses, because, in the second part of the meeting, we just have to look at a notice of motion and that might only take five or ten minutes. Yet, this morning, we are only going to hear from two witnesses.
A number of organizations have contacted me to let me know that they have not been called to appear. When they call, they are being told that they are not on the list yet and that they might never be.
Mr. Chair, one of those organizations is the Union des artistes. The Union des artistes (UDA) is one of the organizations representing Quebec's leading artists. It is chaired by Raymond Legault and it has 11,000 members.
Its representatives want to testify together with Artisti, which protects the rights of artists and has 2,000 members. UDA has initially asked for neighbouring rights and is also the founder of the current private copy system.
It is completely unfair that the Union des artistes is not on the priority list to be invited to participate in our work and that we cast them aside by saying that we don't even know if they are going to be invited to testify. It is simply unfair, Mr. Chair.
I would like us to rethink the witness list together and find a way to invite them. That was very clear when we sat around this table and made the decision. We were supposed to have two hours with two panels. In each panel, there were supposed to be three witnesses or three representatives from various groups.
That's not what we have here. When the representatives are against Bill C-32, we fill the room with six or seven different groups at the same time. When they are in favour of it, they are all alone. They are asked to come back or there aren't very many of them and they have all the time they need to express their ideas.
Before giving the floor to Mr. Del Mastro, I just want to provide the committee members with some information about the two previous comments.
The clerk has informed me that the Union des artistes should be here Thursday. He has been having trouble getting some of the people to appear. So the committee definitely wants to have the maximum of three witnesses per hour of meeting. The clerk and chair have made a note of that.
Depending on the people's availability, we are doing our best. This Thursday, we will for sure have representatives from the Union des artistes and other people.
Before proceeding and turning the floor over to Mr. Del Mastro, I just want the committee to take note of a letter I received this morning from the chair of the committee, Gordon Brown. I will read you a passage from Mr. Brown’s letter. He says the following:
Due to the passing of my mother this afternoon, please be advised that I will not be attending the meetings scheduled for March 8, 2011 and March 10, 2011. I hereby appoint the Hon. Maxime Bernier to act as Chair of the committee for these meetings.
On behalf of the committee, we are sending Mr. Brown our best wishes and our condolences during these trying times for him and his family. His mother was elderly. But I still hope everything will go as well as it can go for him.
I will now give the floor to Mr. Del Mastro.
CIPPIC is the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. We are a technology law clinic in the Faculty of Law, housed in the Centre for Law, Technology and Society at the University of Ottawa. Our mandate is to advocate for balance in policy- and law-making processes and to provide legal assistance to under-represented organizations and individuals on matters arising at the intersection of law and technology.
CIPPIC has participated in policy debates around copyright since our founding in 2003, with a view towards ensuring Canadian copyright law maintains a balance among the competing interests of authors, owners, distributors, consumers, downstream creators, and innovators.
Thank you very much for inviting me here.
In practice, our advocacy has involved us in representing consumer interests and also creator interests on various files. For example, some of our current work includes acting with the Documentary Organization of Canada, the documentary filmmakers, in assisting them in preparing guidelines for working with fair dealing. We work with Canadian independent authors on the Google books settlement, which is a large class action that involves authors all over the world and is taking place in the United States. We are working with the Songwriters Association of Canada in supporting their efforts to get compensated for unauthorized peer-to-peer file sharing.
These efforts have provided us with I think a nuanced view about copyright. I'm hoping that view informs your deliberations.
I'd like to begin by complimenting this government on Bill . This bill demonstrates to me that the government was in fact listening to all Canadians during the copyright consultations of the summer of 2009. The bill represents what in my view is a real attempt to accommodate multiple perspectives on copyright. That's not something that can be said about every copyright bill that we've seen in recent history.
I will organize my brief comments around three principles and argue that where this bill succeeds, it vindicates these principles, and where it fails, it violates them.
First, copyright ought to reflect the reality of Canadians' everyday ordinary dealings with content. Bill 's time-shifting, backup, and private copying exceptions respect this principle. The bill has finally legalized the VCR, something that took a very long time to do. It also has legalized the iPod and other consumer technologies.
This principle is also consistent with Bill 's recognition that parody, satire, and educational fair dealings--“fair” dealings, dealings that are “fair”--ought not to infringe copyright, and that user-generated content is a celebration of creativity, not a threat to it.
Where the bill of course violates this principle is in its anti-circumvention provisions, the most controversial and, in our submission, unbalanced portions of the bill. As the provisions are drafted now, many, many legal activities would become illegal merely because one has to circumvent the digital lock to do it.
This has the perverse effect of locking many creators away from the content they need to create. Consider documentary filmmakers: how do they source content behind a digital lock? News organizations: what happens to the six o'clock news in the future when more and more content goes online, goes digital, and goes behind digital locks?
Why on earth are we making the lives of these creators and these organizations more difficult? CIPPIC advocates permitting circumvention for non-infringing purposes.
The second principle is that copyright enforcement ought to be directed at actors that destroy wealth and undermine creativity, not at children, not at downstream creators and innovators, and not at public institutions like libraries, schools, archives, and museums. In short, copyright litigation should never become a business model in Canada.
Mass litigation against consumers and small businesses is an abuse of our publicly funded judicial system. These are taxpayer resources we're talking about.
Our copyright legislation ought to provide incentives to engage consumers through innovation in the marketplace, not through litigation. Accordingly, CIPPIC supports Bill 's reforms on statutory damages, which seek to do just that.
These reforms could go further. I don't understand why we have statutory damages that include in their target public institutions like libraries, museums, or archives. These are organizations that operate in the public interest. They ought to be free of the coercive influence of statutory damages.
Similarly, CIPPIC endorses Bill 's efforts to give rights holders the tools to discipline bad actors who seek to profit through active promotion of piracy. Such laws are technologically neutral and do not confuse digital infrastructure with the promotion of piracy.
Third, copyright ought to recognize the full range of creators and innovators that participate in Canada's cultural and economic life, and CIPPIC is supportive of Bill 's recognition of this reality.
Consider the ISP liability and search location liability provisions. The bill's treatment of these entities, for example, recognizes the value of content-neutral technology to Canadians and so provides incentives for continued investment in innovation.
The bill also offers particular expansions of creator rights that serve the public interest. For example, CIPPIC supports Bill 's creation of moral rights to performers.
Similarly, CIPPIC is supportive of much of the treatment given photographers under the legislation, but not all of it. One area in particular that we have a great concern around is the elimination of the commissioned photograph rule. This is a provision that hasn't received a great deal of attention before this committee, and I think it deserves some attention.
Right now, the law is that we all enjoy copyright in the photographs we commission. These are our wedding photos, our baby photos, our graduation photos, and our anniversary photos, these kinds of things. That accords with our reasonable expectations. We've hired the photographer. We've created the occasion for which the photographs are taken. Our expectation is that we'll own the photographs, and that includes the copyright in the photographs.
Under Bill , unfortunately, this rule is reversed. Now, a consumer who wants to own copyright will have to negotiate for it, but unfortunately, most consumers just aren't sophisticated enough. They don't know that copyright is an issue. Their legitimate expectation, their reasonable expectation, is violated.
They don't know that it's an issue they now have to bargain for, so they won't bargain for it, and then mischief will arise. This is the single most privacy-invasive, anti-consumer portion of the bill and is one that CIPPIC would like to see addressed.
First, I offer my condolences to Gordon Brown.
If you have my brief, you actually have a partial transcript of what I'm about to say.
My name is Russell McOrmond. I'm the policy coordinator for CLUE, the Canadian Association for Open Source. I'm the co-coordinator of an organization called “Getting Open Source Logic INto Governments”. I'm the host for Digital Copyright Canada, which uses the domain name billc32.ca. I'm an independent software author and a technical consultant.
I coordinate a few petitions that have been tabled in Parliament. There's the petition for users' rights, which has had nearly 3,000 signatures tabled, and a petition for information technology property rights, which has had nearly 400 signatures tabled.
But I am here today as an individual. I do not envy you the job that is in front of you. Copyright is as complex as tax law and, as is the case in tax law, there can be both too little and too much. I have often said that copyright is to creativity as water is to humans: too little and you get dehydrated and die, too much and you drown and die.
A bill dedicated to the ratification of the 1996 WIPO treaties would have been complicated enough. The bill before you is an omnibus bill that includes many unrelated topics and it is unlikely you will have the time to adequately study the impacts of all of these topics.
Even though the bill has been passed at second reading, topics that are outside the bill have continued to be included in presentations and questions. I have created a set of frequently asked questions and answers at billc32.ca/FAQ. While I offer commentary and alternatives to many of the policy positions within the bill as well as topics outside the bill, today I must focus on my primary concern, which is information technology property rights. I have some props that I use. I've been doing this presentation for a few years.
I'm holding up four things. In one hand, I'm holding a DVD, which represents two things: some copyrighted content and the tangible medium it is stored on. These two things can have two different owners, and the rights of each should be respected. In my other hand, I hold some digital technology. It's my Google Nexus One phone, which represents hardware and software. Again, these can have two different owners: the copyright holder of the software and the owner of the information technology.
While you have been told that technical measures are entirely a matter of copyrighted content, real-world technology works quite differently. It is not possible to understand the impact of Bill in real-world scenarios without a better understanding of that technology.
On the content side, it is possible to encrypt content such that it can be accessed only if you have the right keys. I have here one example of an access control.
I discuss in my Bill FAQ how access is a novel concept in copyright, and how protecting access and access controls effectively creates an opt-out of the rest of the Copyright Act for those who make use of access controls. I also discuss how legal protection for access controls in copyright law can be abused to circumvent the traditional contours of contract, e-commerce, privacy, trade, and consumer protection and property law.
Content cannot itself make decisions such as whether it can be copied or how many times, or any of the other things that copyright holders might like to encode in their licence agreements. Content alone cannot make decisions any more than a paperback book is capable of reading itself out loud. Any decisions that are made are encoded in software that runs on computing hardware. What are often called “use controls” in the context of copyright are nearly always software running on computing hardware.
It is critical, therefore, to think not only about the interests of the copyright holders of content, but also about the interests of software authors and the owners of information technology.
I am a software author. Before copyright can offer me anything, I need to ensure that the owners of technology have the right to make their own software choices. If they are not able to make their own software choices, how can they possibly choose my software? This means that IT property rights, including the rights of owners to make their own software choices, are far more important to software authors than copyright.
Let's talk about some real-world technology examples. This DVD here has an access control applied to it--notice that I said “access control”--called “the DVD content scrambling system”. The keys for this type of digital lock are managed by the DVD Copy Control Association. It is important not to let the title of the organization confuse you into thinking that this is a copy-control or a use-control technical measure, as it is not. The DVD Copy Control Association is an association made up of major studios, major hardware manufacturers, and major software vendors. This organization negotiates what features will be allowed in hardware and software that will be given keys capable of unlocking the access control applied to the content. It is the contractual relationship between these major vendors--not copyright--that this access control is protecting.
If you are a competitor of the members of the DVD CCA, or for any reason cannot sign on to their contractual obligations, you will not receive the keys to encode your own content or decode content. It should be reviewed by the Competition Bureau to determine whether such contractual obligations should be allowed. Tying the ability to access content encoded with DVD CCA keys requiring a DVD CCA-approved access device seems like a textbook example of “tied selling” under section 77 of the Competition Act.
Any time you hear the word “lock”, you must always ask who manages the keys. It is not the owner that is in control but the entity who manages the keys. In most real-world examples of technical measures, copyright holders do not control the keys to locked content. They are sometimes but not always given the choice about whether it is locked or not, but not much control beyond that. In the case of locks on hardware and software, the keys are specifically denied to the owners of the hardware. The purpose of the lock is to lock the owner out of what they own.
For no other type of property would this be considered. We would never legally protect non-owner locks to all guns in a country where many are uncomfortable with the mere registration of long guns. We would never legally protect non-owner locks on our homes, alleging it was necessary to protect the insurance industry from fraud. We would never legally protect non-owner locks on our cars, allegedly to ensure that automobiles could never be used as a getaway vehicle.
For the age limit, 18 strikes me as reasonable, though for the purposes of this brief I haven't done an inquiry into when adult capacity should kick in.
In terms of the messaging, something really perverted has happened in the copyright space over the last decade. When disruptive technology hits a business model in the copyright space, usually one of two things happen. One, the communities, the businesses, evolve. They adapt to the new technologies and find a way to monetize it, find a way to put a business model over top of it, and gain revenue. But if that can't happen or doesn't happen, what usually happens is a legislative response, where we turn copyright from an exclusive right into a remunerative right.
That's why we have the radio system we have today. Radio started as pirate radio. When radio stations first emerged, they just played whatever they wanted to. Copyright owners went after them and said, “You're infringing our copyright.”
Interestingly, the legislative response was to say that we don't want copyright owners controlling radio, so we're going to turn the exclusive right into a remunerative right. Radio stations can play what they want to play, but they have to pay a fee that is fairly arrived at through a neutral process--something set by the Copyright Board, for example. That's the system that we have here today.
We haven't done that in peer-to-peer. We haven't seen, first, innovative responses in the marketplace to the emergence of file-sharing, the emergence of digital networks generally. We're starting to, but we haven't seen it yet, particularly not in Canada. Second, we've seen incredible resistance right from the get-go to any kind of collective licensing mechanism.
I mean, we like collective licensing in Canada. I like collective licensing. As a director of CIPPIC, I'm a supporter of collective licensing. But we haven't seen that approach. We haven't seen that approach mostly because certain stakeholders have been adamantly opposed to a collective approach.
Other stakeholders, such as the Songwriters Association of Canada, have been more open-minded about this in looking for mechanisms--through legislation, through the Copyright Board, or through private ordering--to put such a scheme in place. That, I think, is the best response to this phenomenon.
First, I think you are referring to user-generated content, which means that, under Bill , consumers would be able to use artistic works without permission from and without compensation to the author. I must tell you now that, in France, SACEM, which defends the rights of songwriters and music publishers, has negotiated royalties with YouTube. It's sort of the same system you were talking about earlier.
When radio started, authors complained that their works were being used without compensation, and then radio stations ended up paying royalties. Similarly, YouTube is agreeing to pay royalties to collectives that ask them to pay, and that's great. Of course, consumers will have access, but eventually someone will have to pay. When consumers listen to the radio, they don't pay, but the radio station does. So the system is the same. We cannot give works to consumers by telling them: “You can use them without anyone paying royalties”. The system must absolutely rely on principles, such as making things available to the public—that's how it is with radio and it may also be like that with YouTube—so that someone pays the creators.
I personally think that this might be more obvious in French than in English. In English, you talk about copyright, which means the “right to copy” whereas, in French, we talk about droit des auteurs, meaning “the right of authors”. People are very jealous of Quebec's copyright system. We have a star system that works really well. We love our artists and we encourage them. It is not just a star system, but it is also an ecosystem that works very well for consumers, creators and distributors.
You mentioned the education system. In his brief, I think Mr. McOrmond compared royalties and copyright in education to government subsidies.
In Quebec, the royalties paid to authors by the education system work very well. No one has complained so far. Not only does the Minister of Education not complain, but she is criticizing Bill for trying to exempt the education sector from paying copyright. Everyone in Quebec thinks that's the wrong signal to send to young people. Young people have to be aware when they use creative works. There is no access problem in Quebec and, I would suspect, in the rest of Canada, but there is a problem with respecting artists and their work. It is about compensating them. If we want to wake up and still have artists and a vibrant, interesting and rich culture, the least we can do is pay the people who are responsible for that creativity, meaning the artists.
I'll make three comments here.
One, on the response to go to the markets and negotiate access, you forget that copyright is about exclusivity, right? Copyright gives control and the power to say no.
Copyright has a dangerous potential for being a tool of censorship, especially when you're talking about documentary filmmakers or other news organizations, or other critical organizations that want to embrace their section 2(b) charter rights--freedom of expression--and participate in a robust way in debate about an entity, about anything, right? You've got some problems.
The second point I'll raise on the constitutionality is that I think there are two constitutional problems. One is Professor de Beer's argument that any circumvention rules are about devices. It's about property. It's about contracts at the end of the day. It's not about copyright. It's not about intellectual property. So how do you get under the appropriate federal head of power? It sounds a lot more like property and civil rights, which is a provincial sphere of authority.
Then the second argument is a charter argument, right? We don't recognize this often enough. Section 2(b) guarantees freedom of expression. Copyright attaches only to expression. The overlap is 100%, so if you don't get the balance right in federal legislation, in the Copyright Act, you have a section 2(b) problem.
If you look at what anti-circumvention rights are doing, what anti-circumvention laws are doing, and the very narrow scope for avoiding liability for circumventing and the very real probability that you won't get permission to circumvent from a rights holder in all cases, particularly in critical cases, you have a section 2(b) problem as well.
Absolutely. The educational fair dealing exception, in my view, is the single most widely misunderstood provision of the act. In my view, it does a few very important things, but they're not major things. The one thing that it doesn't do is undermine business models or undermine revenues enjoyed by authors as a result of collective licensing in the educational community.
I'm sure you've all seen the articles in the newspapers saying that educational fair dealing will permit wholesale copying of textbooks or will permit replacing textbooks with course packs, with bits of copying here and there. It won't do any of those things. And it won't do those things because they're not fair. It's not going to pass.... They're educational, absolutely. They're educational, but they're not fair. Those strategies replace a royalty-bearing thing, the textbook, which authors have come to expect getting paid for, and rightly so. Certainly we would never support any provision that sought to undermine that institution.
So then the question is, what does educational fair dealing do? In my view, it does two things that are extraordinarily important.
One, it gives teachers the confidence to bring technology into the classroom. Public educational institutions are incredibly conservative organizations and very risk averse. There is a reluctance to bring in new technologies that may incur liability. Educational fair dealing covers that. Then you do have the confidence that you can bring in video, you can bring in the Internet, you can bring in new devices, and you can bring in social networking. You can bring a lot of great things into the classroom, innovative things, things that we haven't even thought of yet, and enhance our children's educational experience. That's what a good copyright law should endorse and should support.
The second thing it does, which I think is actually even more important, is that it opens up a closed curriculum. What I mean by this is that it allows students to bring their own content into the classroom. It allows students to get up in front of the class and perhaps distribute a poem or an article they've found. It allows them to do innovative things, things they have never done before. Instead of doing an essay, they're going to do a YouTube presentation in front of the class. It allows them to be innovative and it allows them to bring content that's not on the set curriculum into the classroom.
That is so important, because that allows us to get new Canadian authors before students, rather than having the same set of novels that have been in the school for 30 years. Now we can get something in there that's brand new, that no one has seen before, that's fresh off the press, something that a student has discovered and wants to share. That's what education is about and that's why educational fair dealing is so important.