Good afternoon, everyone.
We're going to call this sixth meeting of the Legislative Committee on Bill to order.
Today we have, from Access Copyright, Roanie Levy, general counsel and director of policy and external affairs; from the Canadian Anti-Counterfeiting Network, Brian Isaac, the chair; and from the Canadian Private Copying Collective, Annie Morin, chair of the board, and Sophie Milman.
Could we hear from Ms. Levy from Access Copyright for five minutes?
Thank you, Mr. Chair, mesdames et messieurs
, members of the committee.
I'll begin by explaining what Access Copyright does. In order to do so, I invite you to reflect for a second on just one image.
Here I have a copy of a page from a story by children's author, Alan Cumyn. All it is is words on paper: words and paper. In what does the value reside? Of course, the value resides in the organization of the thoughts and ideas on the page; that is, in the words. So when we photocopy, when we reproduce, when we display, or when we post it for others to use, we are reproducing the words, not the page or medium that merely conveys the words.
Access Copyright captures the value of these reproductions and redistributes it to creators and publishers who have invested their creativity, sweat, and capital to produce words on paper.
Reforms to the Copyright Act in 1988 and 1997 brought in collective societies like ours to manage parts of Canada's copyright regime. We have counterparts in every developed and many developing countries around the world.
Every year, Canada's education sector alone reproduces more than half a billion pages of text for use in classrooms. That's equivalent to three million books, books unsold, but whose words are valued enough to be copied. This is not about the child who copies a poem to memorize. This is about mass, industrial-scale copying of texts as educational resources. Mass copying that occurs one page at a time, one chapter at a time.
Across Canada, the education sector, and others, negotiate licences with Access Copyright for these very purposes. This ensures that rights owners are compensated when their works are copied instead of being purchased.
For centuries, this has been the purpose copyright has served: protect the value invested in the words and images that convey the ideas that drive our culture and civilization forward.
Perhaps it was unintended, but Bill turns this principle on its head. It does so with the introduction of a raft of new exceptions, exceptions that say users will continue to pay for the paper, the iPod, the iPad, but the words shall be theirs for free.
Today I'm going to walk you through provisions that demonstrate the true consequences of Bill C-32, that is, the stripping of revenues from Canada's creative industries and redistribution of them as subsidies to the education sector. That is done in the name of fairness. The word “fair”, like a fig leaf, appears to hide an embarrassing reality.
I have wrestled to understand the public policy rationale behind these changes.
I have wrestled to understand the public policy rationale in Bill C-32 for cutting off existing compensation from the education sector to creators and publishers for the use of copyright protected works in tests and exams, uses that are covered today under collective licences.
I have wrestled to understand the public policy rationale for cutting off existing compensation for the display in the classroom of copyright protected works, once again, uses that are covered today under collective licences. These are licences that generate a return on investment that keeps Canada's creators and publishers thriving as partners in the development of Canadian resources for Canadian students.
And I have wrestled to understand the public policy rationale for adding education to the so-called fair dealing exemption. Make no mistake, this is a misnomer: when dealing or use is considered fair dealing, it is not paid for. Fair dealing is free dealing.
Am I wrong or is this an unintended consequence of Bill ? Are the education exemptions a subsidy? Half a billion pages are paid for today. How many millions will be free tomorrow?
The government's background paper says this provision will “reduce administrative and financial costs”. As written, the exception is a hole through which many trucks will pass: everything will become education.
The Canadian Federation of Students understands that. They are cheering. The Council of Ministers of Education understands that. They, with the notable exception of the Quebec ministry of education, hope to bring us to the Supreme Court, because they believe that “most, if not all, photocopying in schools is fair dealing”.
“Fair” does not ensure that creators and publishers will be treated fairly. To me it looks like a fig leaf for expropriation without compensation.
You may have seen this. Four hundred of Canada's world-celebrated writers have signed this letter of protest, which was published a couple of days ago in The Globe and Mail.
If these consequences are unintended, please make it clear in the legislation. Fix it now and spare us decades in the courts.
I will be pleased to take your questions.
Good afternoon. I'm Brian Isaac. I'm the chair of the Canadian Anti-Counterfeiting Network, which we refer to as the CACN. I'm also a partner with Smart and Biggar, Canada's largest firm practising exclusively in intellectual property.
Thank you for the opportunity to present today. Due in part to the short time between our receipt of the invitation to participate and our participation, we have not yet submitted our written submissions, but plan to do so in the coming weeks.
The Canadian Anti-Counterfeiting Network is a national coalition of individuals, companies, firms, and associations, that have united in the fight against product counterfeiting and copyright piracy in Canada. We're going against IP crime. The members of CACN include Canadian organizations, companies, and practitioners who have hands-on experience enforcing against IP crime, including copyright piracy in Canada.
The issue of IP crime legislation has been studied for years in Canada. In 2007, the Standing Committee on Industry recognized that Canada's IP crime laws needed to be amended, and recommendations included ratifying the World Intellectual Property Organization Internet treaties that Canada signed in 1997.
While Bill does not address all the issues that need to be addressed relating to the problem of counterfeiting and piracy in Canada, and that includes addressing some other acts, such as the Trade-marks Act and customs legislation, it does address the Internet treaties and is an important step in addressing commercial-scale piracy in Canada.
Our submission is that passing Bill into law is a matter of urgency. Canada needs to take legislative action that is already way too long overdue, and while we're recommending some specific changes to address loopholes and practical enforcement issues, we do fully support passing of the bill as soon as possible.
Turning to substantive comments, first regarding the ISP safe harbours provisions, we remain concerned that the notice and notice system proposed in the bill will not be sufficient to effectively address the Internet trade in pirated products. In any event, a notice and notice system requires strong provisions directed against enablers of Internet piracy. The bill's proposed enabling infringement provision only applies if a service is “designed primarily” to enable infringement. With experience, I can say it's often going to be very difficult to prove a service was designed primarily for infringement, even when it would be possible to prove that a service provider is knowingly enabling and encouraging infringement as a primary use of the service.
Accordingly, our submission is that the enabling provision should be amended to catch services “designed or operated primarily” to enable acts of infringement. In addition, the provision should make it clear that the full range of legal remedies, including statutory damages, are available against enablers.
Second, we submit that the provisions providing protection for technological protective measures are crucial to fill a gaping hole in Canada's copyright laws. The prohibition on trafficking circumvention tools or services will permit rights holders and law enforcement to go after entities that are enabling widespread piracy. The nature of circumvention activities is such, however, that the act of enabling circumvention and the act of copyright infringement are normally distinct acts that are performed by different people. Accordingly, limiting the prohibition to circumvention for the purpose of infringement, in our submission, is not feasible as it's going to create a loophole for traffickers that will be exploited.
Further, the wording of the exceptions has to be closely scrutinized to try to ensure there are no unintended loopholes that may be used by persons trafficking in circumvention products and services. For instance, if you have purveyors of circumvention tools or services adapted for allowing the loading and using pirated content onto devices that are technologically protected, the fact that it may allow for the loading of legitimate content should not create a loophole when the economic viability of the tool or the service is solely based on enabling piracy.
Generally, we strongly urge against any watering down of the TPM provisions, as they may easily be rendered practicably unusable.
Third, and last, we're very concerned that the two-tier system for statutory damages will be abused and may create perverse incentives for rights holders and infringers. The new non-commercial tier provides a range between $100 and $5,000 that applies to all infringements ever done by the infringer, and that's going to give an incentive for them to copy as much as they can, because they'll only get one capped damage.
Also, the first rights holder to file an action can benefit from the ability to claim statutory damages. This could provide incentives for the rights holders to sue quickly so they're the first to the gate.
Moreover, many individuals and organizations that facilitate widespread piracy, such as “warez” or release groups, do so to build a reputation on the Internet. They don't do it for dollars. One of our concerns is that the two-tier system will benefit those people who are purposely going out to gain their reputations, and it would limit the liability of those individuals.
We recommend you eliminate the multi-tiered system and instead focus on the factors that courts must consider when determining the amounts of the awards, to ensure that individuals copying pirated content for private use are protected from inappropriate damage awards.
We urgently need to equip rights holders, law enforcement officials, and prosecutors with robust legal tools to shut down those who enable or facilitate piracy. We applaud the significant step the bill represents. We urge the committee to implement the amendments necessary to fully realize the principles of the bill and to rapidly pass and implement it.
I will gladly answer any questions.
Good afternoon, my name is Annie Morin and I am chair of the board of the Canadian Private Copying Collective. The private copying levy has been an important part of the Canadian copyright regime for more than a decade. The levy, which is included in the purchase price of blank audio recording media, is distributed to copyright holders in the music sector.
Currently, only one blank medium is subject to this levy, which provides not very substantial revenue for artists. And that is blank CDs, to which a 29¢ levy applies.
However, the amounts generated by the levy on blank CDs are declining at an increasingly alarming rate because they are an increasingly obsolete medium for copying music. I would like to share a few quite edifying figures with you.
In 2008, the total amount of the levy for distribution to rights holders was $27.6 million. This year, the forecast amount is in the order of $10.6 million. That's a 60% decline in three years.
The dilemma is obvious and urgent. We all know that iPod-style MP3 players have become the predominant music copying medium. Some 70% of the 1.3 billion songs copied annually in Canada are copied on digital audio recorders.
That means that Canadian artists receive nothing in exchange for the vast majority of those copies. What we urgently need is a simple amendment to the Copyright Act that would allow the levy to be applied to MP3 players such as the iPod.
Such an amendment would not change the spirit of the act, which is to recognize and protect the right of Canadian artists to fair compensation for the use of their work. Instead it would constitute a simple update of the act.
In 2004, the Copyright Board set the amount of the levy at between $2 and $25, depending on the type of memory in question. Based on our research and our experience, we believe that those amounts—between $2 and $25—are still valid today. When they were applied in 2004, there was no negative impact on the market.
This kind of levy would apply solely to devices developed, manufactured and marketed to copy music. There has been extensive discussion about the fact that the full range of electronic devices such as home computers and BlackBerries would be subject to the levy. That is absolutely not the case.
It is now time to adapt this levy to the twenty-first century. It needs to reflect how music is actually copied today, not how it was copied a decade ago.
That said, the best way to show you how important the levy is for our artists is no doubt to ask Sophie Milman, a Canadian artist, to share her experience with you.
My name is Sophie Milman. l'm a jazz singer, and l'd like to share with you what the levy means to Canada's artists. It helps us fund our recordings, music videos, and tours and to pay our musicians, tour managers, recording engineers, webmasters, make-up artists, and photographers. The levy helps us support countless Canadian suppliers.
The days of big spending record labels are over, but a good quality album still costs more than $100,000, before marketing and promotion. So we've had to become entrepreneurs, making very tough investment decisions every single day.
The levy also helps us pay for basics, such as gas, groceries, and rent, and it helps us support our families. Did you know that most musicians in Canada live on less than $30,000 a year? Without the levy, many of us would have to choose between having careers and surviving.
We need you to realize that copies made of our works have intrinsic value. How much time do you think people spend listening to empty iPods? The levy is value paid for value received, a perfect market solution that ensures that artists are paid for creating value. But it's dwindling to nothing as blank CDs become obsolete.
It is frustrating for us to hear references to the so-called iPod tax. The levy is not a tax. Taxes go to government. The levy goes to the people who make the music. And we're not proposing an extravagant sum. Even a decent set of ear buds costs more than the likely levy. Music is being consumed and enjoyed now more than ever, but artists are being compensated less and less. It's just unfair.
Culture is this country's greatest and most recognizable export. When I immigrated here at the age of 16, all I cared about was that this was the birthplace of Leonard Cohen and Oscar Peterson.
Canada's music community must be supported if we want our country to maintain a worldwide reputation of excellence in the arts.
We're not asking for charity. We don't want access to our music to be restricted. We only want to be compensated for copies of our music made to devices specifically designed for that purpose. Everybody else who makes and sells an iPod or other MP3 player gets paid. Only artists are being told that they have to work for free. You would not ask any other group in this country to forego a legitimate source of income.
We ask that you please save the levy.
Thank you, Mr. Chairman.
Good afternoon and welcome, everyone.
Thank you for being here.
I'm going to start with you, Ms. Levy.
It is interesting to note that, when you talk about the education exemption, you consider it a subsidy to the education sector. I understand from your presentation that there is a potential net loss of vested rights in terms of revenues.
Do you have an idea of the amounts that are involved, or any actual examples of things that the education system would have had to pay in the past and would no longer have to pay today?
Thank you, Mr. Chairman.
Welcome, everyone. I'm pleased to see representatives of the collective societies. UNESCO has recognized the importance of copyright licensing. Ms. Levy, who has a pre-ordained name, Mrs. Milman and Mrs. Morin, good afternoon.
Mrs. Morin, I want to speak to you more particularly because the Bloc Québécois passed a motion in the House of Commons by a majority of members last March that was designed to update the Copyright Act. We introduced a motion of principle to modernize the Copyright Act by applying the levy for artists to digital audio devices.
Since that time, we've heard a lot of criticism. The Bloc Québécois defends the interests of artists, but I'm going to tell you about five specific criticisms made by the and his in the House of Commons. I would like you to respond to each of them.
I'm going to cite them all. If you want to note them down, you can respond to them all at once. I know that Mrs. Milman has answered me, but I would like you to answer me for the people who are around the table.
Mr. Del Mastro, you should listen, she may respond to you in English as well.
First, they always tell us that this is a tax.
Second, they say that it will cost $25 to $75. They say that when they're in a good mood. When they aren't in a good mood, they say it will cost more than $75. I could find the quotations. In addition, they say it would apply to all digital media, including telephones, computers and automobiles. They've even mentioned that.
Then they say that consumers are opposed to it and that they don't want a tax. They also tell us that consumers aren't pirates and that, consequently, should not be taxed because it's as though we consider them in advance as nasty bandits because we think they're downloading files illegally.
So those are the five arguments I hear every day in the meetings of this committee. I would like you to respond to them.
No. Look, these are two separate things.
There's access to music and there are reproductions of music. So, at the time, in 1997, when people bought a CD, part of the royalties went to the artists, just as when people now download a song from iTunes.
Even in a legal business, the fact remains that value is attached to copies of the music that are subsequently made. Consequently, there's no connection. Pirating music and copying music on recorders or any other medium are two separate issues.
So I find it hard to understand that argument. I believe that confuses matters. I can't see any connection between the two.
Thank you for coming today.
I think this is very germane to the whole issue, the issue of who has a right to copy and who has a right to be paid.
I'd like to follow up on some of my colleagues' questions about the issue of the levy, because, my God, the Conservatives have got themselves worked up about this. They've got mailings going out to their ridings every few weeks that the separatists and the socialists are going to force every kid to pay $75 on their cellphone. I look at the Conservative claims, from the minister and his parliamentary secretary, and they're either misrepresenting or they don't understand the role of the Copyright Board. So I'd like to just go through this again.
They claim this is a new tax when in fact the Copyright Board assessed a tariff in 2003-04 based on the evidence that was brought before them. They assessed it again in 2008. Now, the Copyright Board doesn't just roll over when CPCC comes in and wants a tariff. You have to prove it. You have to prove it on evidence. You have to be cross-examined.
What is the role of the Copyright Board in terms of defining whether a use is legitimate or not?
In fact, the Copyright Board of Canada is an economic regulation agency, and it operates exactly like a court.
On the one hand, the Canadian Private Copying Collective will come in with its armada of experts and lawyers to prove the value of copies made and how much the levy should be.
But believe me that, on the other hand, there are all the manufacturers, importers and retailers of these blank audio media that also come in with their armadas of experts to try to contradict what the CPCC is trying to obtain.
Based on the evidence brought before it, the Copyright Board of Canada, like a tribunal, rules and renders a decision determining what is fair and equitable to pay for a medium based on the use that is made of it.
Absolutely. I think you're correct to point out that, especially when you're dealing with a situation where remuneration is currently received by creators and by other rights holders, removing the remuneration would conflict with the normal exploitation of a work or would unreasonably prejudice legitimate interests of the rights holders. If you're familiar with our international obligation, you would recognize that these are two of the three-part steps that every exception needs to be met.
In Bill there is a surprising number of changes that outright eliminate remuneration that is currently being received. There are some in the education sector, there are some in the mechanical reproduction sector, and there are some in others as well.
It also goes to the ability of creators to be able to perceive future revenues. As the use is moved to a digital environment, the elimination of the licensing regimes and the undermining of collective society is going to have a serious impact on the ability of creators and rights holders to be able to actually benefit from the promise of the digital economy, which would otherwise allow them to receive compensation where the consumer is at, where the consumer is actually making uses.
When you think of the digital economy, you think of this seamless web of licences, licences that would be through collective society as well as directly with the rights holders, that would allow the uses to take place in a seamless way to the consumer, but where the creators and the rights holders would receive compensation. The elimination of these revenues today and the dismantling of collective societies generally, which Bill creates, would seriously undermine the innovation of these types of business models in the digital economy.
Thank you, Mr. Chairman, and my thanks to the witnesses for appearing today.
This is an interesting discussion. It seems to me that the role of copyright is to establish a market. It's to establish a system by which people who create things can be paid for their creations. It recognizes that when a work is created, it should be bought and not stolen.
I want to go back to some of the comments of my colleagues across the way, because it seems they're missing the purpose of the bill. I don't want people to copy your music for nothing; I don't. I want them to pay for it. When I was a kid...it's not that long ago; I guess I'm a few years younger than anybody on the opposition side. I had to buy 45s, I had to buy cassette tapes, and I had to buy CDs. In fact, I bought hundreds of CDs.
It seems we have a defeatist attitude on the other side now and some in the lobby, who say, “You'll never shut down isoHunt, and you'll never shut down these organizations.” It doesn't matter. Mr. Isaac says, close up the loopholes. I want to close the loopholes up. I want to shut them down, and I want you to get paid for every song you sell.
What I don't want to do is put in a system.... I need to understand this better. You said you'd only tax music devices. This phone is a music device. It's a phone, it's a computer, and, by the way, as technology improves, it's going to be even more seamless. The same device you use to open your garage door will be the device you use to change channels on your television--and it might well be your television. All these things are converging. Technology is converging. There will be no such thing--there is virtually no such thing today, as we sit here...if you go to the store shelves, unless you're buying very, very cheap devices, there is no such thing as strictly a music device for sale. The good devices are all converging. They do multiple things.
I have no idea how you would ever create a tax for this, and it is a tax. I also want to deal with this question of whether it's a tax or a levy. A government is only a conduit. In fact, right now government is a really good conduit, because it's paying out more money than it's taking in, some of which we're giving to artists, and I'm proud of that. But there is no difference to the consumer where the money winds up. None of the money ultimately goes to something called “government”; it all goes back to Canadians in different ways. So it is very much a tax.
I would like to understand how you would place it only on a device that only copies music. First of all, there is no such device. Secondly, I don't know how you could set it at $2, $10, or $15 and make up for the fact that what Bill seeks to do is shut down the BitTorrent sites. You must support this. Is that not the most important thing for artists, that people can't just steal their music?
We're not talking about piracy here. I'm all in support of any bill that fights and gets these guys out of business. Experience over the last 10 years, since 1999, has shown that you kill one and another bunch spring up in China, where you absolutely have no judiciary authority to go after anybody.
At the same time as you're fighting the bad guys, we want actual market mechanisms that allow us to monetize the copies that are made, copies maybe from legitimate sources, right? Somebody legitimately buys a record and feels the need to put it on his iPod so he can jog to it. That is a copy made that under the new proposed bill I would get no reimbursement from, even though the person who is listening to his iPod derives a lot of enjoyment from it.
It's not that we're being defeatist. We're being, on one hand, realistic. On the other hand, while you're fighting crime, we want market mechanisms. You say that the levy is a tax. Taxes are at the discretion of government. So on one hand, you're a conduit, but where the money goes depends on government. The levy goes to artists only. There's no government. There's no other party with any sort of mandate standing between the levy and artists. So we want those mechanisms to stay in place to make sure that we can afford to continue making records.
Thank you very much, Mr. Chairman.
My name is Ysolde Gendreau. I am a professor at the Faculty of Law, University of Montreal. However, I'm here today as president of ALAI Canada, which is the Canadian branch of the International Literary and Artistic Association, a body that was founded in 1878 for the promotion of authors' rights.
I will continue my presentation in French.
Because the ALAI is at the origin of the Berne Convention, I have come here today to talk to you about Bill 's compliance with international law and especially with the requirements of international law with respect to exemptions. Before talking about the exemptions, perhaps we should talk about the basic principle. I would first like to submit that a copyright act, whether it concerns copyright or droit d'auteur, represents a partnership between authors and distributors. From the time the first copyright legislation came into existence 300 years ago, Parliament has intervened to inform the distributors of works—at the time, they were printers and book stores—that they had to take authors into account in the compensation they obtained from the sale of their books. The role of Parliament is to provide a framework for this partnership and its evolution as new distributors arise.
In a relatively recent example, in 1954, the Federal Court—at the time, it was called the Exchequer Court of Canada—held that the retransmission of works by cable did not give rise to the payment of copyright royalties. In 1988, 34 years later, Parliament intervened and required cable companies to pay royalties to authors. I would like to point out that that intervention occurred at the time of a trade agreement with the United States.
It is by developing this partnership between authors and disseminators as technology evolves that we foster the technological neutrality of copyright. Exemptions to copyright mark the limits of this partnership because, otherwise, there might be no end. This partnership entails exemptions—as you know, since you have previously heard about this—at the international level. These exemptions are sublimated in what is called the three-step test under the Berne Convention and TRIPS, two instruments to which Canada is bound, and also in the WIPO treaties. There are certain special cases: no conflict with normal exploitation, no unreasonable prejudice to the legitimate interests of the authors/copyright owners.
I would like to submit a few examples of this found in Bill , which, in ALAI's view, undermines the three-step principle, because these exceptions are too broad, because they are based on unrealistic conditions that, once again, make them too broad. Here we're talking about fair dealing for the purpose of education, the new section 29. We're talking about non-commercial user-generated content, private copying under section 29.22. We can add, of course, fixing for later listening or viewing. We can add back-up copies that are not limited to software and applied to all works under section 29.24.
The three-step test is what indicates that copyright and copyright holders have limits. This three-step test is not just a statement of prohibition. It provides for a solution to settle the cases of exceptions that might not meet the three-step test.
Why does it contain in itself this seed of a solution? Because the three-step test was designed in the 1960s, at a time when photocopying was on the rise. Copyright thinkers at the time viewed the increase in photocopying as a rise in mass use and foresaw that technology would continue along that path. What do we see today? We are indeed facing mass use of all kinds of media. They also understood that the answer to these mass uses was collective management. We can come back to this later in response to certain questions that you may wish to ask. What the origin of collective management was, to explain that answer and the context of the exceptions, assists in adjusting collective management, mandatory licences and the determination of value.
International copyright law protects this partnership between authors and distributors. It imposes limits on it that must be respected.
I will be pleased to answer your questions.
Good afternoon. Bonjour
. My name is Glen Bloom, and I'm a partner in the law firm of Osler, Hoskin & Harcourt. I appear today on behalf of the Intellectual Property Institute of Canada, IPIC.
It's a pleasure for me to be here today on behalf of IPIC. Thank you for inviting us.
IPIC is the association of intellectual property law professionals. Our membership totals over 1,700 individuals, consisting of practitioners in law firms and agencies of all sizes, corporations, government, and educational institutions. I am the chair of IPIC's copyright legislation technical committee and appear today in that capacity.
To explain the purpose of my presentation, I first need to give you some background about our committee.
The technical committee is composed of experts in copyright. We practise law in private practice, with the exception of Ms. Gendreau, a committee member who is an academic. We represent clients across the spectrum on all sides of the policy debates. The committee takes no position, however, on the policy decisions behind Bill .
Members of our committee have extensive experience in the practice of copyright law and by virtue of that experience have a good understanding of how the Copyright Act works and how amendments could affect both rights holders and users. We therefore bring a different perspective to the specific language utilized in Bill from the government officials, who address policy choices, and the legislative drafters, who, although experts in drafting legislation, may not have expertise in copyright law and its application in practice.
Our committee has examined the technical issues arising from the amendment to the Copyright Act. By technical issues, I mean the actual wording of Bill . Our goal is to assist the government to ensure that the wording of the bill achieves the government's policy intent and avoids unanticipated consequences. We make suggestions to clarify the proposed amendments to ensure the English and French language texts are aligned to achieve internal consistency in the Copyright Act and to point out possible consequences of proposed amendments, which may not have been intended.
We have prepared a detailed submission addressing technical issues in Bill . A copy of the table of contents showing the breadth of our comments has been handed to you. IPIC will be forwarding the submission to government officials shortly. IPIC would be pleased to provide a copy of the submission to this parliamentary committee, if you wish.
I will provide you with two examples of our many technical comments.
First, subsection 13(2) of the Copyright Act currently provides special rules for the ownership of commissioned engravings, photographs, and portraits. Clause 7 of Bill repeals subsection 13(2). As a replacement for subsection 13(2), Bill C-32 will enact a new paragraph, proposed paragraph 32.2(1)(f). This new section will provide Canadians certain rights to the non-commercial use of commissioned photographs or portraits. There's no reference to engravings. Our committee questions whether this was an unintended omission and suggests that consideration be given to amending proposed paragraph 32.2(1)(f) to refer to “photographs, engravings, or portraits”.
The second example of our technical comments relates to treaty obligations. Our committee understands that the matter of the extent to which Bill implements the obligations established by the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty is considered to be a policy matter. However, this is not the case with respect to technological protection measures, or TPMs, which we understand are considered to be a technical matter. Consequently, the committee does not comment on treaty implementation, save in the context of TPMs. With respect to TPMs, we are of the view that Bill is compliant with the obligations in the WIPO treaties. We express no view as to whether a lower threshold of protection for TPMs or fewer legal remedies for the circumvention of TPMs would or would not also be compliant with the treaties.
You may ask why our committee wants to reduce the ambiguities of the legislation and therefore potential areas for litigation. IPIC and our committee strongly believe that in the area of copyright, as with other areas of intellectual property, everyone is better served by certainty. The less doubt there is regarding the scope and application of copyright, the better it is for creativity and for the dissemination and use of copyright works in Canada.
Thank you for listening to me.
I will now be pleased to answer your questions.
Chair, thank you very much.
Witnesses, thank you for being here.
I'll take up from where we left off with the previous panel, because in terms of ambiguity, the one that obviously comes to mind is the definition, the subject of fair dealing. We have had a number who have come forward with the idea that the additional word “education”, as far as the broader definition of fair dealing, will probably not permit extensive copying of textbooks, etc. In fact, they believe it's fair dealing, not free dealing.
How do you respond to that view and square that with your concern, Mr. Bloom, about ensuring that we get the nomenclature correct?
Ms. Gendreau, I very much appreciated your presentation, particularly when you said: "Copyright is a partnership between authors and disseminators," and the word "disseminators" is used here in its broadest sense. Too often I hear the minister say that there should be a balance between artists and consumers instead. I've often heard that as well from the Conservatives. They say the same thing.
However, if we look at history and the Statute of Anne—Anne, Queen of England—we realize that this has always been a search for a balance between authors and disseminators in the broadest sense of that term. It is good to see the facts re-established.
Moreover, unless I'm mistaken, when you refer to the exemptions under Bill that do not meet the three-step test, you're saying that the bill is inconsistent with international treaties?
Perhaps I could add something. There are two things I would add.
There are other provisions in the act that may go against the grain of international conventions, not just the ones dealing with exceptions. Proposed section 30.04, on works made available on the Internet, or publicly available material, as they're also known, is reliant, in part, on the existence of a notice that would be put by the copyright owner to prevent copying. This raises serious issues concerning the Berne requirement that copyright does not depend on the existence of formalities.
There's also something that is very puzzling in that we have expanded here the exceptions for persons with perceptual deficiencies, something that is, of course, a very laudable purpose. There is already an exception for this purpose. However, right now, you may know that there is an international treaty being discussed. It's a bit ironic that we should be doing something about this issue before there's actually a treaty in place. So that would be quite different.
Overall, I think I would simply say that the 21st century is supposed to be a century that is based on the knowledge economy. Copyright, as an intellectual property right, protects a form of knowledge. Therefore, it is important to recognize the protection of what is being created by creators and promoted by copyright owners if we are to be an important player in this knowledge economy, with the manufacturing sector in decline in our countries.