I want to start by thanking the committee for inviting me as a witness on such an important issue in the history of Canadian copyright, which I care deeply about.
I offer my comments as a law professor at Osgoode Hall Law School and as founder and director of IP Osgoode, Osgoode Hall Law School's IP and technology program. I offer my comments without an agenda or interest in supporting any one stakeholder group. I aspire towards a balanced approach that weighs all the challenges the government faces and the various stakeholders' interests.
The bill is ambitious in its attempt to achieve this balance, as there are numerous provisions put forward that try to address the varying interests and challenges. Despite this valiant attempt, the bill does need fine tuning, since some issues are still left unaddressed and others are ambiguously addressed.
If we start with the policy that we want to have end-users--the public--enjoy works, that we want to ensure that authors have the ability to create and to continue creating, that we want to have creativity and innovation flourish, and that we want to have the greatest possible dissemination of works while ensuring at the same time that there's some viable means of compensation for the use of others' works, then this bill still needs some work. If we want legislation that is clear and understandable to Canadians, then we need to do better.
In the time I have I will focus on just a few points that can be rehabilitated in this committee.
My first point deals with the amendments proposed for section 29 on fair dealing. While it is salutary to have added “parody or satire” as a new purpose, I am still unclear as to why “education” was added as a new purpose under this provision. This new purpose is too broad and invites years of litigation to clarify it, which will lead to access-to-justice issues and will force the courts to resolve matters that are for the government to legislate with confidence in so doing.
What is the policy behind this provision? What problem is there with respect to education that is not currently addressed in the other sections of the act? If the government has something in mind, it should simply say so expressly and not purport to do so ambiguously through a catch-all term, hoping that whatever it is that is meant or might be meant is addressed. Significantly, there is no precedent case law for this purpose, and so the courts will be left to do the job of government. I should note that there is now ample case law on the other purposes.
How do we fix it?
Legislating the Supreme Court of Canada's CCH factors is not an answer. It does nothing to clarify what we mean by education. The government should pronounce itself on court decisions when it wishes to overrule them, not when it agrees with them, and certainly not when it has before it a unanimous Supreme Court of Canada decision, as indicated with CCH. It might, for instance, intervene to legislate a lower court decision it agrees with if it thought higher courts might overrule it, but it makes little sense to intervene and restate what the Supreme Court of Canada has already said.
So the question remains: how do we fix it? Do we legislate the Berne or TRIPS three-step test that restricts permissible exceptions in national legislation to certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author? I don't think this, by itself, is the full answer either. This would be inviting more ambiguity into an already ambiguous framework in defining for Canada what is meant by “normal exploitation”, what is meant by “unreasonably prejudice”, what the “legitimate interests of the author” are, and so on. It would run the danger that Canada's law would be determined in Geneva by WTO panels making decisions on the TRIPS provisions.
What we need to do to fix fair dealing with respect to education as a purpose is to isolate, at a very basic level, the problem we are trying to solve through legislation, and then express that problem.
If we know what it is, then we should say so. If we don't know what it is but have a sense that we need to do something, then I would suggest the use of a more flexible framework. For example, you could include a provision at the end of section 29 stating something like, “it is not an infringement of copyright to deal with such educational purposes in such manner as the Governor in Council may prescribe by regulation”.
This would allow for a more evidence-based approach and allow government departments with expertise to helpfully collect evidence and be specific on what they need to cure by legislation, and to be nimble and flexible in making adjustments to copyright problems in the educational sector as they arise from time to time.
My second and concluding point is that given the policy question of balance, the issue of tackling matters for creators head-on in a way that would ensure that they are compensated for the uses of their works is not addressed. I would be happy to address this matter more fully if given the time in discussion.
Creators, in some ways, are caught between owners on the one hand and users on the other. An area I've done a lot of work on is the copyright relationship between owners and creators. In terms of this bill, creators seem to be potentially undermined either by the revised fair dealing clause or by another provision, section 29.21, on non-commercial user-generated content, which in its current form also remains vague and may have unintended consequences.
Those are my introductory comments. I look forward to your questions.
Good afternoon, everyone.
My name is Michael Geist. I am a law professor at the University of Ottawa. As I'm sure many of you know, I have been very active on copyright policy issues for many years. In 2007 I launched the Fair Copyright for Canada Facebook group, which grew to over 92,000 members and has local chapters across the country. Earlier this year I edited From “Radical Extremism” to “Balanced Copyright:” Canadian Copyright and the Digital Agenda. This book is the largest academic study on Bill to date, with peer-reviewed contributions from 20 leading Canadian experts.
That said, I appear before this committee today in a personal capacity and I represent only my own views.
While I am sometimes characterized as a copyright critic, the reality is that I am supportive of much of Bill . When the bill was first tabled, I described it as flawed but fixable, and I had strong support for many of the compromises that are found within it. That's still my position.
l'm happy to talk about any elements of the bill, but I want to focus my opening remarks on two issues: fair dealing and digital locks. As you know, I believe the fair-dealing reforms represent an attempt to strike a balance between those seeking a flexible fair-dealing provision and those who are largely opposed to new exceptions altogether. I think the Bill compromise is largely a good one.
As a result of full-page advertisements and regular op-eds, we are all aware that some groups claim these changes will harm Canadian culture. l'd like to point to two reasons for thinking that the reality is far less worrisome and offer a potential amendment to alleviate some of those ongoing concerns.
First, fair dealing in education is not new. It already encompasses research, private study, news reporting, criticism, and review. As you can well imagine, these categories cover a considerable amount of the copying on Canadian campuses. These changes are not revolutionary but evolutionary. They are reforms that will enable the use of new technologies in the classroom and support student creativity, innovation, and curiosity.
Second, and most importantly, Canadian fair-dealing analysis involves a two-stage, two-part test. Part one is whether the use or the dealing qualifies for one of the fair-dealing exceptions. If it does qualify, part two is an analysis of whether or not the use itself is fair. The extension of fair dealing to education only affects the first part of the test. While Bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair.
The Supreme Court of Canada has identified six non-exhaustive factors to assist a court that is part of a fairness inquiry, and this past summer the Federal Court of Appeal, in a case involving educational copying, confirmed that the Bill changes will still require a fairness analysis.
While I think some of these concerns are misplaced, there is still the potential to provide greater certainty to alleviate some of the writers' and publishers' fears. I believe this can be accomplished by codifying that six-part fairness test within the Copyright Act. This reform would ensure that judges would be required to assess the fairness of any use—including education—before it was treated as fair dealing. I believe it would also put to rest claims that fair dealing would lead to a free-for-all. In fact, quite the opposite is true; by design, the reforms would ensure that fair dealing is fair for all.
With regard to digital locks, which have been among the most discussed and most criticized aspects of the bill, I should start by clarifying that much of the concern does not come from digital locks per se. Companies are free to use them if they so choose, and there is general agreement that there should be some legal protection for digital locks since it is a requirement of the WIPO Internet treaties, and that's a clear goal of this legislation.
Rather, the concern stems from Bill 's unbalanced position on digital locks, in which the locks trump virtually all other rights, as the committee itself heard just last week from Mr. Blais in the context of education. This distorts the copyright balance not only for the existing exceptions within the Copyright Act, but also for the new consumer rights, which can be trumped by a digital lock just at the time they are widely found in devices, DVDs, electronic books, and more.
The most obvious solution to this would be to amend the bill to clarify that it is only a violation to circumvent a digital lock if the underlying purpose is to infringe copyright. This approach, which has been adopted by some of our trading partners, such as New Zealand and Switzerland, would ensure that while the law could be used to target clear cases of commercial piracy, individual consumer and user rights would be preserved.
l'd like to quickly make five points with respect to this proposal. First, this approach is compliant with the WIPO Internet treaties, which offer considerable flexibility in their implementation. I know there are competing opinions on the issue, but there is no shortage of scholarly analysis—including a piece I did in my book—as well as country implementations that confirm this is an option open to Canada. In fact, we need look no further than Canada's own Bill to see that Canadian officials recognize that this approach is consistent with WIPO.
Second, 13 years after the treaty, claims that Canada should adopt a U.S.-style approach run contrary to the emerging international record.
With the benefit of experience, there is a clear trend towards greater flexibility. Even the United States has recently added exceptions for jailbreaking phones and unlocking DVDs for some non-commercial purposes.
Third, the approach is entirely consistent with the goals of Bill . It enables us to target commercial infringers who are profiting from their actions, since their circumventions would still constitute violations of the law. Meanwhile, it would provide businesses with the legal protections for locks that some are looking for and maintain consumer fairness by assuring Canadians that their personal property rights will still be respected.
Fourth, it is worth emphasizing that amending the new consumer exceptions alone--format shifting and the like--is not enough. For example, if the lock provision on format shifting were removed, consumers would still face the barrier of the general anti-circumvention provision. In order to address the issue, both must be amended to preserve the digital copyright balance.
Finally, in the event that the committee instead wants to consider specific, new, additional exceptions to the digital lock approach, I have provided the committee clerk with a full list of potential reforms, many of which are based on the rules found in other countries.
I look forward to your questions.
I would like to thank the committee for inviting me to appear today to provide input on Bill .
Before starting my remarks, I would like to give you some background. I'm not telling you these things to boast, but because I understand some have expressed concern that I have one or two clients implicated in this legislation and that their views are shaping my perspective. This is not the case. I'm a lawyer who specializes in this area. I have worked and taught in it for many years. I'm a partner with the law firm McCarthy Tétrault and the former head of its intellectual property group. I'm an adjunct professor of intellectual property at Osgoode Hall Law School. I'm the author of five books, including the leading treatise on computer and Internet law. I'm a member of numerous committees, including those in the IP area. My involvement in copyright matters for creators, users, and intermediaries spans decades of practice. I've appeared in three precedent-setting Supreme Court of Canada cases, including CCH, which modernized fair dealing in Canada, and the Tariff 22 case, which examined the liability of ISPs. I appeared for the ISPs opposite a rights holder, SOCAN.
I'm here today in my personal capacity and am not representing my clients.
In introducing this bill, the government made it clear that its purpose was to enable Canada to have copyright legislation that would benefit the Canadian marketplace. It was drafted to create framework laws and to enable Canada to be a leader in the digital economy in line with our trading partners. I support these objectives. There are, however, areas where the bill will have unintended consequences that are inconsistent with those objectives. I hope to assist members of this committee in understanding these issues, many of which are technical in nature. In the limited time I have to address the issues, I would like to focus on several examples of technical problems that need to be fixed.
The government has said that the bill will give owners stronger legal tools to go after online pirates that facilitate copyright infringement. Minister Clement said that the bill goes after the bad guys, the wealth destroyers. To address this problem, the bill has a new section on the enabling of infringement. A technical problem is that as drafted, the section is likely ineffective, because it applies only to services designed primarily to enable acts of infringement. Most file-sharing sites, including peer-to-peer, BitTorrent, and pirate-hosting sites, are not designed primarily to enable acts of infringement but to facilitate the sharing of information and files.
There are two other technical problems. The government's intention is that ISPs should be exempt from liability when they act strictly as intermediaries. On the other hand, Bill is intended to ensure that those who enable infringement will not benefit from the ISP exceptions. However, the drafting does not make this clear. Only two out of the four exceptions expressly say this. Based on the differences in wording, a court might well conclude that a pirate-hosting site gets an ISP exception even when it is liable for enablement. This could not be anybody's intent.
Lastly, the bill exempts commercial enablers, the wealth destroyers, from being liable for statutory damages even when they facilitate infringement for a commercial purpose. This can't be anybody's intention.
The bill also contains a new exception that would let individuals take existing content and use it to create user-generated content. The intent is to permit an individual to use content to make a home video or create a mashup of video clips. This is an exception that to my knowledge does not exist anywhere else in the world. From a technical drafting perspective, the exception is so widely cast that it would most likely violate Canada's WTO TRIPS obligations. TRIPS mandates that exceptions must be subject to what is known internationally as the three-step test. The exception, as drafted, would permit individuals to do almost anything that the author could do with his or her work— including creating translations, sequels, or other derivative works—and publish the result on the Internet. They could also create collective works or compilations of works, such as the best of a TV series or their favourite iPod playlist, and post those on the Internet, and they can do a lot more. The result is that the author loses significant control over the uses of his or her work, a fundamental copyright concept.
Over and above this, there could be significant economic consequences to the author. The intention is to permit uses that would have no effect on the market for the work; however, the drafting permits aggregate effects on the market for the work, which would be very damaging and substantial.
Also, the individual's use of the UGC work must be non-commercial. A website operator can charge for disseminating the UGC work, but the author gets none of the remuneration. They would, however, in other countries that don't have this exception, countries that have let the markets solve the problem.
There are other technical issues with the bill that also need addressing, but, as the chair has pointed out, I'm out of time.
I would like to thank the committee again for inviting me to appear. I look forward to answering your questions.
You talk about a so-called balanced bill, and I must admit that I fail completely to understand you. When we read it, we see that it sets out a good many exceptions. The Bloc Québécois, Quebec performers, a whole slew of organizations, that I could list for you, involved in culture or consumer rights, as well as the Barreau du Québec, find that this bill is unbalanced. Do you know why?
One of the reasons is that we analyse the issue differently. Our approach is not the same. In English, you talk about "copyright", in other words the right to copy. In French, and based upon our Quebec values, we talk about "droit d'auteur" and the "Loi sur le droit d'auteur", in other words an act dealing with the rights of authors. We are respectful of these rights. Every new exception included in the act is therefore for us a new infringement on the rights of authors. That makes a world of difference, in Quebec in particular, but especially in the arts community. This is an act the purpose of which is to defend their rights, but every time we include an exception, we take one of these rights away from them.
It is so much so the case that three measures contained in the bill will deprive creators of artistic content of $74.8 million. The non-modernization of copying for private use will take $13.8 million away from them. With regard to the exemption for education, I wish to tell you that non-respect of copyright is a very bad message to deliver to children and students. Indeed, because they are studying, they are authorized to not pay copyrights. I do not see how you are able to defend such a thing. Tomorrow morning, once the bill has been passed, we will be able to copy this beautiful book you have to our heart's content, using education as a cover. It could even apply to an automobile driving school.
In the case of the exception for education, we are talking about $40 million less, and in that of the abolition of ephemeral recording, the loss amounts to $21 million. Those three exceptions alone represent a $74.8 million reduction. The gentleman provided a very good description a little earlier of the "YouTube exception". It is indicated that it is for non-commercial use, but never before have consumers been granted user rights that do not even require the consent of the author.
The fact that statutory damages are capped at $20,000 in the case of musical works makes no sense at all. In other words, any individual wishing to steal a musical work simply has to find $20,000 and wait for charges to be laid. The digital lock, however, is a measure that a large enterprise truly needs, especially in the game software industry. But if a person circumvents a digital lock, he or she is subject to criminal sanctions of a fine of $1 million and a term of imprisonment of five years. Do you see the difference? When you infringe on rights relating to a musical work, the penalty is $20,000, but when you circumvent a digital lock, it is of $1 million. This provision of the bill is clearly advantageous for big business. It is a double standard.
This imbalance comes into play at several levels. Given that I wish to provide you some time to react—and, in any event, there will be a second round—, I will give you the floor right away.
Madame Lavallée, I certainly agree with a lot of your sentiment, particularly the sentiment that talks about droit d'auteur
and how important that concept is in Quebec. Sometimes in English Canada we unfortunately don't perceive it that way. Your point is a very valid one, and the Bureau du droit d'auteur
mentioned that point.
You can see that concept very significantly as it plays out in the UGC exception, where the fundamental concept of an author being able to control how the work is used, what it's used with, and what it's associated with, is absolutely fundamental. In this case this exception is not just about little mashups; it's about a lot more, which would have really important ramifications on droit d'auteur.
On your other point, I also agree that as the exceptions are drafted, it would lead to a lot of uncompensated copying, but the format shift, for example, is drafted in a broad enough way that it would permit people to side-load from other people's computers. That could not be intended. It would permit one person to copy their entire iPod or computer onto somebody else's computer, which again is not intended. The intention must be to copy only for the person's own private purposes, not for somebody else's private purposes.
Lastly, in relation to statutory damages, you raise a really good point about the interrelationship between statutory damages and behaviour. What this bill does with respect to statutory damages is tell people they can copy as much as they want onto their computer or onto their iPod. It doesn't matter how many times, because the most they're going to be liable for is $5,000. Once you're copying, why not copy as much as possible?
Our trading partners have tried to send signals indicating that this kind of behaviour is not appropriate. The statutory damages that we have give exactly the opposite message to consumers, which is that you don't need to buy legally. You might as well just load up, because if they catch you, there will be a cap.
Mr. Geist, you and I were both at the event at McGill University at which Bruce Lehman, who wrote the DMCA legislation, spoke. Mr. Lehman shocked everybody, because he said he felt the DMCA had been a failure and urged Canada not to do what he had done.
Then he said something that I thought was very disturbing. He said he felt we were in somewhat of a post-copyright era, in that when millions of people just opt out of any respect for copyright, copyright has no place.
I personally don't believe that, but what concerns me in this bill is that people are going to do what they're going to do anyway. I've heard this from a number of people about the digital lock provision in proposed section 29.22's right to reproduce for private purposes unless there's a technological protection measure, and about proposed section 29.23 on time shifting unless there's a technological protection measure, and on education rights.
If people are ignoring the law, how do you enforce it? That's the question I've had: how do you force people to, for instance, destroy their class notes after 30 days? How do you tell them they can't keep a library? Once people see that as an irrelevant issue, then the whole legitimacy of copyright is undermined.
Do you believe it would be better for us to focus the bill so that there are clear rules about how copyright is enforced and how it's not enforced, so that if citizens have rights guaranteed under the bill, then those are their rights?
There are a couple of things there. First, if it's a citizen's right and we're going to agree that something like time shifting or format shifting is appropriate and ethical and that the law should reflect that, then I don't think it's appropriate to say that the right can simply disappear by virtue of the existence of a digital lock.
If it is a right and reflects the ethics that I think many of us have, then it's appropriate to record a television show or format-shift a video. If that is in fact the case, then the law ought to reflect it, and the notion that it can be lost by virtue of a digital lock is fundamentally wrong.
Let me speak, though, on the enforcement side for a second. The issue of enforcement is an important one, because I think that in many ways digital locks punish the good guys. Those who would seek to infringe, frankly, are going to infringe whether there's a lock there or not.
Those who will respect the lock provisions are educational institutions, teachers, and students doing assignments. At the very beginning, they sign ethics documents about what is appropriate and permitted behaviour and what is not. If you're a researcher and you're putting forward a grant application that may involve some circumvention, you can't apply for that grant, because it violates the law. Putting forward lock provisions that are inconsistent with the other sorts of balance that we already have in the non-digital world ultimately punishes those who are seeking to abide by the law.
The truth of the matter--and I think this is what Lehman was getting at--is that the experience in other countries that have implemented these rules is that the digital lock rules are by and large ignored by the pirates and followed by those who want to abide by the law. What we're doing here is punishing those people.
Thank you for the question, Mr. Angus.
I hope at a later point in time I get an opportunity to address the other part of your question, which Professor Geist dealt with, because I don't agree with that.
Concerning this situation, I believe that artists are losing revenues, as you've said. The broadcast mechanical is an example.
Is this a constitutional violation? I think the answer is clearly not. Parliament has control over how it legislates with respect to copyright and, in my view, even with respect to TPMs it certainly would have constitutional control under the way the Constitution Act has been construed. As long as it rounds out a scheme with respect to copyright, there would be constitutional authority. There's no doubt that TPMs are there.
With respect to the broadcast mechanical, it's a question of policy: is it good or bad? I think a lot of people didn't see this one coming, frankly. I certainly think the rights holders didn't see it coming. Parliament can do it if they want, but whether they ought to do it is another question.
Thank you, Mr. Lake. I appreciate it.
The first thing to mention is the fact that we have a bill and we're at the committee. It really is essential for the Canadian economy that we move forward with this bill and get something that can be passed. I can't underestimate how important it is for Canadian business, Canadian jobs, and Canadians who want to establish new business models and go forward, so the fact that we're doing this is good in itself. The bill is a start to that.
In terms of the provisions, there are a number of them that I'll mention first. First, the fact that we're implementing the WIPO treaties is a very positive development. There are some who have said the WIPO treaties are outdated; that is not the case at all. Those are forward-looking treaties. They are being used successfully by those of our trading partners who have implemented them.
The technological protection measure provisions are absolutely essential for underlining new business models that exist around the world. They simply cannot be undertaken without legal protection for TPMs.
The other provision I'll mention, simply because of time, is enablement. I think the presence of that will send a clear signal that pirate intermediaries in Canada cannot stay here. This is not a place where these wealth destroyers will be welcome. Assuming those are tweaked appropriately, this is a very important aspect of the legislation.
I'd like to respond to a couple of comments that Professor Geist made in response to Mr. Angus's question. I do agree with the notion that we need very clear framework rules, but I fundamentally disagree about what those rules are. As well, I do not believe that a person who buys a product subject to a digital lock should necessarily simply have the right to circumvent that digital lock, and I don't think using the “trumping” language is actually appropriate.
The TPMs on products are there to support business models, and if you look around the world, those business models are subscription business models, rent-to-own business models, and owning business models that cannot be sustained without legal protection for TPMs. If a person could simply acquire a product under various terms and then circumvent the TPM, there would simply be no incentive to launch those products, or, if they were launched, there is no reason to think they'd be provided at different price points that would be beneficial to consumers. Rather, what you'd have is businesses thinking that they had to price a product for the maximum possible use, which would be anti-consumer.
The last point I'll make on that, if I may, Mr. Lake, is that this isn't only about consumers. This is also about Canadian businesses and jobs, and every time an uncompensated copy is made, as Professor Geist would advocate, that's somebody whose pocket is being picked or whose job is being lost. That kind of policy, I submit, is a real problem.
Thank you, Chair, and thank you, witnesses, for being here. We've long anticipated your arrival--in my case, at least, it's been since 2005. It's not as long as Mr. Geist, but certainly I have taken an interest in this area.
Recently there has been news about The Pirate Bay, the world's largest illegal peer-to-peer file-sharing BitTorrent website. You'll find this is a theme I raised with officials last week.
The Pirate Bay recently lost an appeal of a copyright conviction in Sweden. The court, as you know, found that “The Pirate Bay has facilitated illegal file sharing in a way that results in criminal liability for those who run the service”. The three site founders were sentenced to prison and fined some $6.5 million U.S., I believe.
In 2008, prosecutors said that The Pirate Bay had 2.5 million registered users, peaking at more than 10 million users simultaneously downloading files, and was making $4 million a year from site advertising. It's clear that the site was, if you will, a high-volume and very lucrative business.
I'd like to ask all three of you, if I could, how you see Bill stopping, if indeed it does at all, sites similar to The Pirate Bay--sites that facilitate the mass distribution of unauthorized copies of works--from being able to operate here in Canada.
I'll start with you, Mr. Sookman, and work my way back.
I get that, Mr. Geist. It's okay that people should take these matters to court and go through the process of standing up for their rights, but it would appear that the very existence of an isoHunt in Canada is problematic and is very much the result of what appears to be a legislative holiday for companies and other BitTorrent sites.
Let me go to the question of statutory damages, because I think we raised this a little earlier. I think a number of you had something to say. In your case, Mr. Geist, you suggested that we propose a $5000 cap on liability, and I think your quote was that it represents a good compromise. Others have called this cap something that is in fact a licence to steal.
I'm wondering--and this is somewhat connected to the previous question--if what you have here is a situation that might actually encourage people. They could say that the one-lump-sum approach allows them to do it severally, manifestly, and as often as they want. They'll take the risk on that $5000 because they can probably make a lot more money commercially, or they'll do it for other reasons, such as notoriety.
I'm worried about the signal that comment might send to Canadians and file sharers, which is that this kind of low-risk approach to the probability of conviction, as well as a low fine, would defeat the very purpose of ensuring the balance that you claim this bill has.
The quick answer raises at least two points. First, statutory damages are relatively rare. Most countries don't have them. We're generally one of the exceptions rather than the rule.
I think this notion that $5,000 is going to be viewed by the average Canadian as a licence to steal is completely out of touch with reality. For most Canadians, $5,000 is an awful lot of money. If anything is a dangerous signal, it is a potential multi-million-dollar liability for individuals for non-commercial infringement. That's what we have in the United States right now. There are more than 30,000 cases in which individuals have faced the prospect of a multi-million-dollar liability--losing their homes, losing all of their savings--for sharing a few songs. I think that's a fundamentally wrong, unjust message to many individuals. We want laws that target those who enable the infringement. We have penalties that are stronger, in terms of financial penalties, and statutory damages that are larger than those of any other country in the world, because many of them don't even have statutory damages.
To send a message that an individual Canadian is potentially on the hook for millions of dollars is the wrong message, and to suggest that somehow $5,000 is just pocket change and won't deter me from sharing files to my heart's content is out of touch with the reality for most Canadians, who would look at $5,000 as being an awfully expensive penalty to have to pay.
Sure, I'll do that with pleasure. Thank you very much.
Perhaps I might start this comment by picking up on a question that Professor Geist was asked and his comment about the creator's choice.
Of course there are different models that are evolving, in large part due to the technologies that are enabling these, but sometimes authors have no choice. We see litigation on this. There is, for example, the Robertson case, which is before our courts. There are standard-form contracts that are unclear and that are very much in place, and authors are forced to sign those. This is very much the case for freelance authors, because we do not currently have a copyright framework that is able to address those issues.
Some of the provisions that we might seek in a creator-friendly act, if you will, are some that we see more in the civilian jurisdictions. Quebec is an example, and I've written about this. I have a book that just came out, called Copyright, Contracts, Creators: New Media, New Rules, in which I discuss and itemize and study the issue, and I look at the copyright contract issues that might help creators.
In a sense, the copyright is as good as the piece of paper it's written on. If creators lose the ability to have control over their work, then their copyright really is worthless, so there need to be more robust provisions in the Copyright Act to animate those rights, and those would relate to the copyright contract issues.
In civilian jurisdictions there is a litany of terms. I'll just list those. You have them in Quebec, and in continental Europe there many different provisions, including contract formation and interpretation rules; purpose-of-the-grant rules; rules on use, scope, and duration; strict interpretation rules; and remuneration clauses. That's all across continental Europe. These are things we do not have here, because there is, in a sense--and this is the balancing that goes on--freedom of contract in the common law. It is believed that parties are free to contract, but we don't see this happening for all creators.
Thank you very much, Mr. Chair.
This is a fascinating conversation, but I think there's a lot of confusion. First I'd like to respond to some of what I've heard, and this isn't my question.
Mr. Sookman, it seems you've indicated that the intent of the bill is bang on what you're looking for, especially in relation to the BitTorrent sites and so forth. You're looking for some wording changes to tighten the bill so there aren't any loopholes. Perhaps you could recommend in writing to the committee where you'd like to see the amendments you've spoken about, specifically with respect to enabling infringement.
Ms. D'Agostino, just to shorten a little bit what you said, we need to define “education”. If you have a recommendation as to how the bill might do that, I'd love to see it.
Mr. Geist, I still feel there's an awful lot of misunderstanding on the opposition side with respect to what fair dealing means and what they are proposing, which sounds a lot more like free dealing. They are indicating that if something is fair dealing, therefore it's all going to be free. For the benefit of everyone in the room, could you please explain the difference between fair dealing and what has been termed “free dealing”, which is what I think has been presented in some cases?
The notion of free dealing is one that is foreign to our copyright law, and indeed it's foreign to most copyright laws that I'm aware of. It is the notion that someone has the unfettered right to copy without any sort of compensation. A rights holder can choose to make their work available in that fashion, but you wouldn't typically find that in a copyright law.
Our law is no different. What our fair-dealing provision provides, as I mentioned at the outset, is essentially a two-stage test. It first identifies the kinds of specific categories that may qualify as a potentially fair dealing. Other countries have done away with this altogether. For example, in the United States there are no categories at all. Anything can potentially be, in their terms, a fair use. In Canada you first actually have to qualify for one of those categories. The changes within Bill expand the categories by establishing that parody, satire, and education would be new categories, but, critically, there is a second step, and this would be true for the United States and would be true here as well.
That second step is a full fairness analysis to determine whether or not the copying itself actually is fair. It is a six-part test that the Supreme Court of Canada has identified to take a look at how much is being copied, what alternatives exist, and what the economic impact or the impact of the person who is engaged in those sorts of copying is. That's the test that's used. There's a similar test in the United States.
Now, no one would ever ague that because the United States has fair use with no categories, any copying of any sort is perfectly permissible in the U.S. There are clearly limits to fair use, limits that are based upon this test.
Precisely the same situation is true here in Canada, where there are limits established by the courts. You heard me suggest that if there are real concerns about this, we could codify it within the legislation. What those limits ensure is that we are not talking about tens of millions of dollars in losses in unfettered copying whereby people will simply say, “I qualify for a category, so I can copy to my heart's content.” They will still have to ensure that the copying itself is fair.
Mr. Chair, thank you for the opportunity. I'll just make a few points.
The first is that I think Professor Geist is absolutely talking about free copying. When it comes to the educational exception, one can copy up to a substantial part without infringing. Anything over or above that would normally be subject to compensation authorization. If you introduce fair dealing for education, the fairness factor is free, uncompensated copying.
The second is the format shift exception. If it's opened up so that anybody can do format shifting even when they buy something with a digital lock, that is significant, uncompensated copying that will only result in difficulties in the marketplace.
The assumption behind Professor Geist's remarks is that there is a problem. When I buy a CD, I don't have a problem. I can put it onto an iPod. It simply isn't a problem today. These laws have been in place in Europe for over a decade, and the problems that he's articulated simply don't exist.
The other thing to mention--and we haven't focused on this--is that because of the way the TPMs are structured, there are not only significant exemptions but also very significant regulatory powers that the government has to deal with any problems: first, it can deal with anti-competitive conduct; second, it can create new exemptions wherever they're needed, and that includes exemptions that might be needed to exercise fair-dealing rights, which include research private study and instruction in an educational context; third, the bill contains provisions that let the government also require copyright holders to make works available in a format they can use if their exceptions are things they can't exercise.
There isn't a problem and there's not likely to be a problem, but in the event that there is one, they contemplate that it can be solved because of the way the TPM provisions are structured.
I can tell you that the structure we have is better than the structure in the U.S., which only has rule-making. It is better than in the EU, which only permits a power to make works available. This is a combination, and with all these things in place, I just don't know what the big concern is.
I'd like to re-emphasize a few points and expand on others.
It's all about balance, right?
When we look at rights holders' and creators' rights, my concern is that if we don't do some tweaking to the existing exceptions that are now in the act, there's going to be an unintended erosion of rights holders' and creators' rights.
I have mentioned fair dealing and user-generated content. On fair dealing, one thing I haven't talked about is my own analysis of the six factors. When you line up Canada with respect to the U.K. and the U.S., you see that the court says there are more or less six factors, and there could be more. At the same time, in terms of the effect of the dealing on the works--meaning the actual market considerations, the market substitute--the Supreme Court of Canada says that it's not the only factor, nor the most important.
We know that this is not the case in the U.K. and not the case in the U.S. What we have in Canada with CCH is a broad and liberal interpretation of both the actual purposes and the fairness factor. Left unchecked, the way it's configured now means that when you compound education plus CCH, you will have something broad, unless we are able to itemize exactly what we mean. I put forward one suggestion on how to do that and I'm happy to also put it in writing for your consideration.
On the UGC, something we might think about is transformative uses. I have before me one of our Osgoode students, who is taking a stab at drafting a provision on transformative uses so that you have a new work--a different purpose, an identity, a message, a new context--that can help tweak and fix that provision.