Mr. Speaker, as I was saying before you rightly interrupted me, I am pleased to speak today to begin second reading of Bill , the Copyright Modernization Act.
This bill is a key pillar in the commitment this government made in the Speech from the Throne to position Canada as a leader in the global digital economy. We promised a bill that would modernize Canada's copyright law for the digital age, protect and create jobs, promote innovation and attract new investment to Canada.
With this bill, we are ensuring that Canada's Copyright Act is focused on the future and is responsive to an environment in which things happen quickly and change is constant.
A primary aim of any copyright reform must be balance. The copyright system must find a balance between interests that can seem to be competing, for example, between consumers who want access to material and artists and innovators who want to be and should be rewarded for their creativity.
However as hon. members are well aware, finding that balance can be and has been very difficult. It has eluded the House for over a decade, and balance for one group may be seen as unfair to another.
From July to September of last year, the hon. heritage minister and I held a national consultation on copyright issues. The bill before us was guided by the input of thousands of Canadians, creators, consumers, businesses, educators and intermediaries.
Let me begin with creators. During the consultations, creators told us they needed new rights and protections to succeed in a digital environment, and so the bill before us implements those kinds of rights and protections of the WIPO Internet Treaties and paves the way for a future decision on ratification.
The bill also empowers copyright owners to pursue those who enable copyright infringement, such as illegal peer-to-peer file sharing websites. At the same time, Canadians participating in the consultations told us they did not think it was fair for consumers to face exorbitant penalties for minor copyright infringement, and so the bill before us significantly reduces existing penalties for non-commercial infringement. It introduces the test of proportionality as a factor for the courts to consider when awarding statutory damages.
This brings me to the perspective of consumers and users. During the consultations, Canadians told us they wanted to use the content they had legally acquired. They wanted to time-shift television programs. They wanted to shift format from CDs to iPods. They wanted to post mashups on the web. They wanted to make backup copies.
Canadians will be able to record television, radio and Internet programming to enjoy it at a later time, if the bill is passed, with no restrictions as to the device or medium they wish to use. Just as important, this bill would remove any barriers in the Copyright Act to the introduction of new technologies like the network personal video recorder and cloud computing. The latter is critical to Canada's ability to participate in the digital world as a full partner. As well, for their private use, Canadians will be able to copy any legitimately acquired music, film or any other works on to any device or medium and make a backup copy.
There are some who would argue that consumers should have to pay a levy on iPods, smart phones and Internet services, the iPod tax as it were, to compensate artists. We disagree. We oppose the iPod tax as regressive, unfair and economically destructive. Why should consumers pay more for an iPhone or a BlackBerry even if the device is not used for music? It is unfair. It would make devices costlier, would not prevent piracy and would encourage more black markets.
Let us help artists by cracking down on those who would destroy value, not innocent purchasers of hardware.
Let us return to the provisions of the bill. The bill permits the inclusion of copyrighted material in user-generated content created for non-commercial purposes. The provisions will not interfere with markets for the original work, nor will they disrupt the growth of business models that have developed around the dissemination of user-generated content online.
The bill also includes important new measures for the print-disabled. Recognizing the opportunities that today's technology allows, it permits a person to adapt a copyright work into an accessible format on his or her own behalf.
For computer program innovators, the bill includes measures to enable activities related to reverse engineering for software interoperability, security testing and encryption research. It clarifies that the making of temporary technical and incidental reproductions of copyrighted material as a part of a technological process is acceptable.
What did we hear in our consultations from educators, museums and researchers? They told us that they needed more flexibility to use copyright material in the service of education and learning. The bill proposes new exceptions that would recognize the enormous potential that technology offers students.
The bill before us expands the existing uses allowed as fair dealing. It adds education, parody and satire, reconfirming this government's commitment to structured education and creativity.
We are building on a well-established feature of Canadian copyright law to respond to and meet the needs of educators, be they in the classroom, in a home-school setting or for training in the workplace.
Finally, let me outline how this bill responds to the needs of Internet service providers. The bill clarifies that ISPs and search engines are exempt from liability when they act strictly as intermediaries in communication, caching and hosting activities, but at the same time, ISPs will play a role in helping combat copyright infringement.
Fair, balanced and technologically neutral, this bill accomplishes all of these things, but it also helps our economy by encouraging two of the most powerful forces we have, consumers and creators. They are sometimes the same people. Regardless, they are the force that guarantees that Canadians are innovators and are capable of growing the knowledge economy. But consumers and creators cannot do it alone. They need modern copyright laws, and that is what Bill is all about.
Madam Speaker, I thank the for starting off this debate and I am very pleased to be a part of this as well as we take a historic step in this country.
We made a commitment as a government in the last election campaign, and also as part of our throne speech, that we would table new copyright legislation, and so we have. Bill , the copyright modernization act, is our effort to get it right. The last time copyright legislation was dealt with in the House of Commons, there were some concerns raised by Canadians across the country and we have listened to those concerns. We have come forward with legislation that we think should have the support of enough members of Parliament in order to move Canada forward.
Canadians, more than ever before, are active consumers in digital media. We are increasingly purchasing our music online, as well as films and televisions shows. We are connecting with friends and colleagues via Facebook, Twitter and web interfaces in ways that were not imagined just a little over a year ago. As a country we have, by and large, fully embraced the Internet and how it has changed the way we innovate, create and live our lives.
Unfortunately, Canada's copyright regime has not kept up with the pace of change. The last time our copyright laws were updated, people were buying CDs and using pagers, not iPads and Netflix. The reality is that our copyright laws are older than most of the technologies that we enjoy today. That is why on June 2 of this year our government introduced Bill here in the House of the Commons.
We consulted Canadians before doing this. This bill reflects the diversity of opinions expressed during consultations held last summer. These consultations took the form of an interactive website, public meetings, round tables and written submissions from average Canadians. And because each region was included in these consultations, we received opinions from across Canada. Numerous Canadians spoke to the government, and it listened to them.
Copyright holders told us that their 21st-century business model depends on strong technological protection measures. And we listened: Bill contains protection measures such as digital locks to protect against piracy and to allow creators to choose how they wish to protect their works.
Artists and creators also told us that they deserve to be fairly compensated for their works, and we listened.
Likewise, consumers asked specifically for legislation that would reflect how content is delivered and stored in a myriad of devices. We listened, which is why this legislation, as the minister said, is technology neutral and clarifies for consumers the fact that they can now legally format shift and time shift the products they have purchased. Bill is forward-looking and flexible. It implements the WIPO treaties and brings Canada in line with international standards.
During our consultations last summer, Canadians were also clear with us on the issue of fair dealing. They wanted to see it expanded and improved. This bill accommodates that desire by adding education, parody and satire to the existing uses of what is called “fair dealing”. It recognizes legitimate rights of Canadian families, schools and libraries to make use of copyrighted materials for their purposes.
Canadians were also very clear that they do not want to pay unnecessary taxes or new levies on iPods, iPhones, laptops or computers, or even on automobile hard drives that CDs can be ripped directly into. We do not believe this is necessary. We do not think it is right. We think that is an old solution for an old problem and it does not embrace the fact of new media. Our government has been clear that we oppose any new tax or levy, which is why the levy issue has been left out of this legislation.
The government made a commitment to protect businesses, which are absolutely essential to Canada's economic success, and this commitment is at the centre of our copyright modernization bill.
I just want to let the House know about some of the support that this legislation has received. It has been broad based and quite substantial in terms of the number of people who have come on board to support this legislation.
The Entertainment Software Association of Canada, which represents Canada's video gaming industry, supports this legislation. It accounts for over 14,000 jobs across this country. In Montreal, Burnaby, Toronto and Charlottetown, P.E.I., in places all across this country, I met with video game and software developers who support this legislation. Here is what ESAC had to say. It believes this bill is “critical to the success of Canada’s digital economy”; it is good public policy and is essential to our economy. It said:
|| We applaud the government for showing leadership on this complex issue
The film and television industry also supports this legislation. Over 150,000 jobs are involved in this sector from coast to coast, representing $5.2 billion in the Canadian economy. The Canadian Film and Television Production Association said it applauds the government's copyright reform. The government is playing an important role “in ensuring that those jobs are maintained and that new jobs are added over time”.
Canada's recording industry is a multi-million dollar industry and producer of world-class musical acts in this country. It told us that it wants strong protection for artists to compete with the world's best. We agree and we listened. Let us hear what it has to say about our legislation. The CRIA applauds the government's copyright bill and says, “We thank the government for taking this step to protect the right of artists and other rights holders to earn a living from their work”. These changes are long overdue and welcomed by artists.
The artists themselves are supporting this legislation. Randy Bachman of BTO said the entertainment industry's ability to remain healthy is dependent upon a strong copyright framework. Bill is moving Canada into the digital and Internet age.
Juno Award winning artist Loreena McKennitt, who has sold over 13 million albums worldwide, said the changes proposed in the bill are “fair and reasonable”.
Independent recording artist Michelle McKibbon thanked the government for introducing Bill , legislation “supporting...artists like myself”.
The Canadian Chambers of Commerce, representing approximately 300 of Canada's business associations and boards of trade, support the bill. They said they believe Bill “lays the foundation for future economic growth and job creation”.
The president of la Fédération des chambres de commerce du Québec, Françoise Bertrand, believes that Bill is critical to ensuring a competitive and stable business environment in Canada.
The Canadian Council of Chief Executives, which represents over 150 executives across the country and companies representing $4.5 trillion in assets, supports this legislation. This is what the former Liberal deputy prime minister had to say about this bill. He said Bill “will provide badly needed protection to Canadians who create music, films, games and other digital works.” Business leaders say it will protect creators and consumers. The government has struck an appropriate balance with its legislation.
The Council of Ministers of Education, CMEC, which represents all of Canada's 13 provinces and territories and their ministers of education, supports this legislation. The chair of CMEC, the minister of education in Nova Scotia, a New Democrat, Marilyn More says:
|| This legislation provides the clarity we have been looking for.... It is excellent that the bill allows students and educators to use Internet materials in their learning and teaching activities without fear of copyright infringement.
Ministers of education across Canada have responded positively to this new copyright legislation.
We consulted Canadians and we listened to them. We took this course of action because our government and the members on this side of the House know that the contribution made to Canada's economy by Canadian digital industries cannot be downplayed.
Other people have come forward as well to support this legislation. We get the sense that support for this legislation is broad based and substantive, if we look at the folks who are supporting this bill: the television and film industry, the music industry, digital new media folks, the business community and individual artists.
The Canadian Association of Research Libraries said it applauds the government, which has responded to the copyright reform concerns expressed by the library and education community. It stated:
|| The government has clearly listened to what the library and education communities said
The Globe and Mail said the government's new copyright legislation should be passed.
The newspaper is right. We think this legislation should be passed.
I do not want to go much further into the substance of the legislation beyond what the had to say, because I have limited time. However, there is one thing that he did not mention that is a critical element of this bill. I hope all members in the House who are interested in this legislation recognize this important element.
The bill mandates that Parliament, every five years, will be forced to revisit and continually modernize Canada's copyright regime. So whether people have concerns about specific elements of this bill and think we should do a little bit more here and a little less there, the reality is that this legislation is an tectonic shift in Canada's regime with regard to copyright reform. We are forcing Parliament, from now forward, to forever make sure that Canada's copyright regime stays up to date.
Canada has not elected a majority Parliament since November 2000. It has been 10 years. As a result of the realities of minority Parliaments, often it is politically challenging for governments to be willing to step forward and to engage in the copyright issue. This legislation forces Parliament, regardless of political pressures, to make sure that Canada's copyright regime stays on the cutting edge so that Canada can continue to create jobs, so that we maintain the reputation that we have around the world as being not only an innovator and a leader in new technology, but also one of those countries that protects the rights of creators to have their works protected by law.
Madam Speaker, it is with great pleasure that I rise today to begin the long awaited debate on Canada's proposed new copyright law, Bill . If I may be permitted a personal comment, I would like to say that no other proposed legislation has occupied my time as the industry critic for my party as much as this bill has, nor have I received more visitors knocking on my door to discuss proposed legislation than for the case of Bill C-32. Suffice it to say there is a very large number of stakeholders watching very closely as Bill C-32 moves forward in the House.
I would like to go over the context in which we are undertaking this important task. Canada is right in the thick of its transition to the digital economy, which is having a major impact on our artists, writers, musicians, software developers, film-makers, photographers and others who create material protected by copyright.
We all recognize that the creators who inform and entertain us are major economic drivers. In Canada, according to a 2007 Conference Board of Canada study, culture generates over $80 billion in direct and indirect economic spinoffs every year. That accounts for more than 7% of our gross domestic product and creates about 1.1 million jobs in this country.
The digital economy is changing culture in this country. It is also changing our society and our economy. The information and communications technology sector employs some 600,000 Canadians and spends $6 billion a year on research and development. The digital economy is flourishing around the world. Last year, OECD countries invested nearly $3 trillion in hardware, software, communications and IT.
I know that Canada can play a leading role if it positions itself to exploit its full potential in this key sector. That would really boost the country's economic growth.
Among other innovations, the last decade brought us Facebook, the iPad, and YouTube, which have given Canadians unprecedented access to myriad choices. They have also presented a challenge to creators in terms of protecting the integrity of their work.
Unfortunately, when it comes to copyright, Canada has, for too long now, been way behind in terms of global best practices. Our outdated copyright legislation has been the subject of international criticism.
A 2005 OECD study found that Canada had the greatest per capita number of offenders engaging in illegal file-sharing. In May 2009, the United States put Canada on its blacklist of countries designated as being especially lax in protecting intellectual property, a list that includes Algeria, China, Russia, Pakistan, Indonesia and Venezuela.
Copyright and intellectual property protection have become a crucial component of trade talks with the European Union.
The time has come to ensure that our artists and creators receive fair compensation for their work and that, in this digital era, our entrepreneurs are compensated for their innovations. Canada must modernize its copyright legislation.
In short, the time has come for Canada to adopt a fair and balanced copyright law, one that takes the needs of both creators and consumers into account.
The Liberal Party of Canada is taking the following position with respect to the proposed copyright legislation. Bill takes a number of important steps to modernize copyright law, and at this time the Liberal Party will support sending the bill to committee. However, we believe serious challenges remain that must be addressed at committee.
Specifically, the Liberal Party has problems with digital locks and technological protection measures, or TPMs. The Liberal Party has concerns with the application of new TPM circumvention amendments in Bill C-32.
Specifically as it applies to music, video and other digital media, the Liberal Party believes the Copyright Act must allow Canadians who have legitimately purchased a CD, DVD or other product the ability to transfer their purchase onto other personal devices, such as an iPod, or make a personal backup copy on their computers so long as they are not doing so for the purposes of sale or transfer to others.
We do not believe that Bill achieves that principle at this time. There are various ways in which a solution could be found and we look forward to examining the different options in committee.
Let us talk about the exemption for the education sector. The Liberal Party agrees that educators need flexibility in order to ensure that education is as enriching as possible. However, we must see to it that authors and creators are paid fairly for their work. The education sector is in the best position to convey the message that copyright is important, and we must ensure that Canadians understand that it is important for our creators to be compensated fairly for their work.
With regard to the exemption for the education sector, the Liberal Party will attempt to amend the bill by proposing to clarify what exactly constitutes “fair dealing”. Naturally, the secret of a good policy always resides in the right balance. By defining what is fair, we will ensure that the law gives educators the necessary flexibility while offering artists, authors, and creators a better guarantee that their works will be protected.
Another issue is mash-ups. Bill creates a new exemption for user-generated content. However, it is broadly written and can create a potential opening for abuse. We will seek amendments to tighten the language to ensure that the mashup exemption can only be used for its intended purposes and not unexpectedly create a loophole for further copyright infringement.
On the subject of statutory damages, Bill defines new statutory damages for infringement of copyright. Many stakeholders have expressed deep concerns about this section. The Liberal Party believes applied statutory damages must be commensurate with the severity of the infringement.
With regard to the exhibition in public of works of art, the present Copyright Act defines the right to be compensated when a work created after June 7, 1988, is exhibited in public. The Liberal Party believes that this provision discriminates against artists who created works before 1988.
As for the resale of works of art, throughout Europe artists are compensated when their works are sold and then resold. The value of an original work may increase over the years and artists believe that a portion of the difference between the original price and the resale price should be paid to them. The Liberal Party proposes studying European practices in order to find a better way to compensate Canadian artists for their works.
Furthermore, the Liberal Party would also like to look at other technical issues surrounding, among other things, the collective responsibilities for neighbouring rights and the definition of exemptions with regard to hosting, information location tools and network services.
Modernizing Canadian copyright legislation is vital for our economy, job creation and appropriate compensation for our artists and creators. We believe that this modernization can best be achieved through dialogue and collaboration and we hope that all parties will work together to achieve this objective and to ensure that Canada continues to make a cultural contribution to the world.
Madam Speaker, the Bloc Québécois believes that Bill , whose goal is apparently—I repeat, “apparently”—to update the Copyright Act, does not achieve that objective. The Bloc also believes that it needs to be amended in committee in order to do justice to artists, copyright holders and copyright in the truest sense of the word. Without amendments, this bill will be unbalanced and will favour large corporations at artists' expense. I will explain this.
The approach in this bill is disheartening. The government says it is helping artists, but it is not putting its words into action. Yesterday, in the House, the said that on May 10, 2006, the Bloc had voted against the Conservatives' budget, which included a 20% increase in the Canada Council's budget, but that is an error. I do not know whether it is unparliamentary to use the word “error”, but the fact remains that the Bloc voted in favour of the Conservatives May 10 budget that included a 20% increase. It was not an increase so much as a cut to the increase previously announced by the Liberals. The Liberals had announced a $150 million increase, which was then reduced to $30 million. We see that the minister is twisting words and passing himself off as someone who is helping artists. He says he is helping them, but he is not. The Bloc Québécois obviously voted against the bill the government introduced in 2009 to take money away from artists.
My point is that the principle has not changed. What the government and its ministers are saying and what they are doing are two different things. It is all well for them to keep saying that they are helping artists, the fact remains that the approach in this bill is totally unbalanced. In fact, what this bill does is help major U.S. companies.
It is too bad that people are not listening because some interesting things are being said. Madam Speaker, can you please ask the hon. members to be quiet? Thank you, I think that calm has been restored.
This bill is totally unbalanced because it benefits major U.S. companies and major computer gaming software companies to the detriment of artists. There are two totally disheartening approaches in this bill and seven deadly sins, if I can put it that way.
The first approach is one using digital locks. Sure, we can say that digital locks are necessary, and that they must be respected, but to base an entire bill on them is a bit much. With this bill, the government is telling artists that if they want to make money, all they have to do is put digital locks on their musical works to prevent anyone from copying them. If people want to make a copy for themselves, or to transfer the music to another format, it would be absurd to make them buy the original work again. That makes no sense, and it will not work. We are talking about the survival of artists and their art here, and this is important for many reasons. An approach based on digital locks is completely ludicrous.
This bill was developed for the big American film and video game companies, and digital locks meet most of their needs. For these big American and European film and video game companies, the government did a good job.
But the bill does not address the needs of artists. Artists do not want to put locks on their musical works. They do not want to restrict the distribution of their works; they want people to be able to enjoy them. But for that to happen, we need to modernize the Copyright Act and maintain the royalties and levies in the existing act. But that is what the government does not understand.
I spoke about seven deadly sins. The first should come as no surprise, since I was the one who moved a motion in the House to modernize the current Copyright Act in order to maintain the levy on digital music recorders, a motion that was adopted by a majority in this House.
Not having these royalties is like depriving artistic creativity of oxygen. Not having these royalties means that artists will no longer earn enough to continue doing what they do. I am not making this up. Earlier, the and the spoke about taxes. It is incredible that ministers who should be sensible and should understand the meaning of words are using the wrong words and giving disinformation in order to reach their goal, which is to help American companies.
The system of copying for personal use needs to be updated. This system exists already; it is already in the law. We just need to add “digital audio recording equipment” to “cassette” and “CD”.
The exception known as the “YouTube exception” allows a mother to post her son's first steps on YouTube along with music, used in good faith. That seems nice enough but it opens the door to a whole slew of music piracy. The scope of this clause needs to be reduced, and these so-called works created from other works should be banned. That is exactly what it means to respect artists' rights.
In addition, Bill should require broadcasters to pay for ephemeral copies. Again, this clause is poorly written, unbalanced. It benefits broadcasters and, again, takes money from artists. It takes away royalties that would come to them.
And the damages that a copyright owner could be paid should definitely not be capped at $20,000. That is like saying that any pirate can put $20,000 on the table and can make millions of dollars with a copy they have made. It makes absolutely no sense to cap damages for a work that has been copied.
We must also make Internet service providers more accountable. There are two ways of doing so. On the one hand, they could contribute to content costs, as called for by AGAMM, an association that maintains that free music is a myth. This Quebec artists' association wants Internet service providers to pay them royalties. On the other hand, we must also make Internet service providers more accountable by forcing them to be proactive to stop piracy. I am not convinced that the notice and notice system—as it is commonly known—is working. That is, when people realize their work has been copied, they inform the Internet service provider, which simply sends a letter. I am not convinced that this works. It would be very interesting to examine this aspect in committee and look at the consequences of an escalating response. We definitely need to examine this aspect very seriously. However, it is clear that the status quo is not enough.
As I said earlier, the seventh deadly sin of this bill is the digital lock, which cannot be the cornerstone of a bill to protect copyright. This would mean that consumers could no longer make copies for their own use on their MP3 players. The minister said earlier that everyone supports digital locks. That is false. Consumers' associations do not support digital locks. The following quotation is from a news release dated June 4, 2010:
|| The Canadian Consumer Initiative or CCI [an umbrella group of consumer protection agencies] deplores the fact that, with this bill to reform the Copyright Act introduced earlier this week [on June 2], the federal government is once again abandoning consumers and giving in to the demands of corporations.
The members can read it. It was dated June 4 and can be found on the Canadian Consumer Initiative website and the Union des consommateurs du Québec website. It is quite interesting and explains why this will not help consumers. When the and the say that no one opposes protection measures, they have it all wrong, because in fact, many people object to these digital locks. Once again, the Conservatives are denying reality.
The Bloc Québécois wants to amend this bill in committee. We think it needs to be amended according to four basic principles. First, we have to find a way to compensate artists and copyright owners. Musical works are not free. Music is not free.
Music belongs to artists, and artists have the right to be compensated when people listen to their music in different formats. We have to encourage creation and dissemination. That is the Bloc Québécois's second principle: supporting dissemination.
New technologies improve access to the things people create, and consumers should be able to benefit from that. I doubt that digital locks will support that. We have to promote the dissemination of artistic works on all existing platforms. Through its subsidy programs, the government must support dissemination via new media without negatively affecting conventional media, which are often where new works appear in the first place.
As I said earlier, music is not free. That is why the government must launch an information and awareness campaign for large, medium-sized and small consumers, who need to understand that music belongs to artists. People can buy CDs, they can buy music online and they can listen to it on rhapsody.com, but they must respect artists when listening to music. If they do not, creation, production and design will suffer, and we will be overtaken by culture from other countries, especially by American music.
We also have to crack down on what I call professional piracy. We know there are websites where piracy professionals make multiple copies or allow point-to-point or peer-to-peer transfers. This allows people to download and listen to music online for free. We have to crack down on this. We cannot just tell these pirates that it will cost them only $20,000 in damages every time they use a work of music. The bill, as written, may not be harsh enough. As far as damages are concerned, it is quite clear that we cannot limit the price of a work of music to $20,000.
In the upcoming debates on the so-called Copyright Modernization Act, it is clear that the Bloc Québécois will defend its principles any way that it can. We saw yesterday in the House with regard to the TradeRoutes and PromArt programs that this government does not defend artists and does not help them. In fact, the government does more harm than good. Bill will do more harm to artists than good. A number of groups are going to lose a lot, particularly in the publishing community. With the addition of a fair dealing exemption, some francophone publishers will end up closing their doors. What textbooks will we find in schools? They will be textbooks from other countries that have protected their culture and the copyright of their creators.
This government does not protect artists. It does not protect copyright and it does not protect copyright owners, which is consistent with its long “anti-artist” history. The Bloc Québécois truly hopes that, throughout Quebec, the jurisdiction of arts and culture will be transferred to the Government of Quebec. There is an overwhelming consensus on this. Quebec takes care of its artists, and one way it does that is by helping them tour internationally.
The Government of Quebec helps artists and copyright owners. The education sector is treated very well by the Government of Quebec, which pays royalties to publishing companies and artists when schools use their artistic works.
For the Bloc Québécois, the transfer of responsibility for arts and culture to the Government of Quebec would be a step towards what we really desire—our own country. Not only do we want to manage all our areas of activity, but we also want to support and help our artists.
Madam Speaker, I am proud to rise today to speak to Bill , which is legislation to update Canada's Copyright Act. I speak as someone who has actually tried to feed my family off copyright as an artist, a writer, a broadcaster, and a publisher.
The New Democratic Party has been clear about its desire to ensure that Canada's copyright regime is updated, and New Democrats place copyright reform at the centre of what must be a much broader innovation agenda for Canada. This includes codifying protection for net neutrality, committing to national benchmarks for broadband access right across rural and northern Canada and into the urban areas, and enhancing our digital cultural programs to ensure that Canadians are able to participate as international citizens within the democratic, culturally vibrant, public commons that is the Internet.
In respect of copyright reform, New Democrats have been consistent. We told the government to bring WIPO into the House and have it ratified. If we had done that, it would have taken some of the international pressure off Canada. We have been telling the government that we fundamentally support the principle of remunerating creators for their content and oppose criminalizing consumers.
The Conservative government had five years to ratify WIPO and bring it before the House, but it stalled. The previous bill was so poorly constructed that it pretty much died the day it was brought in. The first lesson to know about copyright is that it has to be balanced, and getting it balanced requires broad-based consultations with every stakeholder.
Bill was pretty much ditched as soon as it was brought in and that sent the Conservatives back to the drawing board. Here we are two years later and five years into the government's term.
Unfortunately, I do not think the government has yet gotten the message. We will be more than willing to work with it on addressing problems, but we want a clear understanding from the government that it is willing to work with the other parties to fix this bill.
Many international observers are looking to Canada. They think this is a country that can actually get it right when it comes to copyright. Like every other nation in the world, we are in the midst of unprecedented technological change. What we have seen over the last dozen years is a cultural copyright war that has been played out internationally, and some jurisdictions have gotten the mix wrong.
If we look at the history of copyright, we can see that the push for copyright has always come from technological threat. There are certainly those who are threatened. Some older business models would use copyright to make sure that new, potentially difficult platforms for distribution are stopped from going forward.
What we have learned in Canada from watching other countries trying to bring forward copyright is that no amount of legislation or legal action will force consumers to return to dead business models. Nowhere is this folly more clear than in the United States' Digital Millennium Copyright Act, the DMCA.
The U.S. entertainment industry has used both the courts and legislation to try to criminalize consumers, and the result has been a scorched-earth policy that was waged by the Recording Industry Association of America against its own consumer base. After 35,000-plus lawsuits against kids, single moms, and even dead people, the so-called digital genie has not gone back in the bottle, and it is not going to go back in the bottle.
The one thing I would say to the Conservative government is that, for all of its dumbed-down approach to social policy, it seems to understand that suing kids is not going to be a constructive, long-term solution. That might be one of the only positive results coming from what we have witnessed south of the border.
Does this mean that digital technology has simply trumped the principle of copyright, and endless downloading can simply erase the rights of creators? Certainly not. We need to look at the Internet and digital innovation for what it is. This is an exciting new distribution platform and new models are emerging.
We have the opportunity in Canada to come forward with something that is forward-looking rather than backward-looking. I found it unfortunate this summer when the denounced citizens who questioned the bill as digital extremists. If copyright reform is to succeed, we have to move beyond this self-defeating culture war, because the choice in the end is whether we support regressive or progressive copyright.
Regressive copyright is based on attempting to limit, control, or punish users of creative works. Regressive copyright is ultimately self-defeating, because the public will find ways to access those works.
Progressive copyright, on the other hand, is based on two time-honoured principles: remuneration and access.
The digital age has shown us that consumers of artistic works want to be able to access them how and when they please, and they will do so. To them the Internet is not a threat; it is an amazing vehicle for participation in exciting cultural exchange. The question is, how do we monetize it?
The balanced approach represents the mainstream of Canadian copyright opinion. I refer to the judgment in the case of Théberge v. Galerie d'Art du Petit Champlain inc. The Supreme Court said that the purpose of copyright was to strike “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”.
So the role of copyright is not simply the enforcement of property rights. It is, however, a public construct. That is what copyright is. It ensures that there is public access to artistic works and a public interest in remunerating the creator.
Unfortunately, I do not think Bill manages to strike this balance. It offers the public a series of rights in the same way a roadside carny offers good odds in a shell game. Attempting to access those rights under the digital lock provisions will prove that none of these rights actually exists. That is fundamentally problematic, because all the rights that are guaranteed in this bill can be erased by a corporate piece of software saying that consumers cannot access the works they have legally purchased.
Support for digital locks exists internationally. I think everyone in this house would agree that digital locks exist to protect a piece of copyrighted material from being stolen, or, as the said, from someone ripping it off and putting it on BitTorrent. However, it is another matter to use those digital locks to prevent access for educators or consumers who actually bought a product that they would normally be able to time-shift or format-shift.
As for the remuneration of artists, the other fundamental principle in copyright, this bill consistently undermines the revenue streams that artists have relied on. We can see this in the government's full-on political assault on the private copying levy. The government's attack on the levy is emblematic of its attempt to turn copyright into a political battle in which it gets to rant about taxes and go after them. The government, however, is really going after one of the time-honoured principles that Canadian copyright is based on, which is the remuneration of artists.
Before we get into the fundamental problems of this bill, let us put it in context. Technological change has always driven copyright reform. Music is a very good example. In 1906, John Philip Sousa denounced the threat of mechanical music, which was actually the roller piano. He felt that if people started buying roller pianos they would not need live musicians anymore. I do not know how many people bought a roller piano, but it was not quite the threat they made it out to be.
The Association of American Publishers picked up the threat of technology when the record player appeared. They thought that if there were record players nobody would buy sheet music. Sheet music was actually one of the great copyright-drivers for artists. If people listened to records, they would not have to play the piano in their parlours. This was clearly a case of a new business model threatening an older one.
In 1923, record companies, which had been considered a threat a few years before, suddenly found that they were being threatened themselves, because the radio appeared. The record industry thought that if people listened to music on the radio for free, they would not buy records.
By 1928 it appears their fears may have been realized. Record sales dropped off by about 80%. By 1931, they had dropped off over 90%. I would argue that perhaps some of that had to do with the Depression, but the argument could have been made by record company lobbyists that the appearance of radio had also had an effect.
Were the radio listeners criminalized? Did they put locks on access to radio? No, they learned to monetize radio revenue, and the record industry never looked back until it came across a kid who invented Napster.
Napster was enormously successful, not because the music was free, but because it offered a young generation almost unlimited access and the ability to choose what they wanted when they wanted it.
That was a phenomenal change in how music was accessed. Steve Knopper wrote an excellent book Appetite for Self-Destruction: The Spectacular Crash of the Record Industry in the Digital Age.The recording industry made a fundamental and colossal error when it decided to try to shut down the technology through losses rather than monetizing. At that point, digital music went underground for a number of years, and the market has never quite recovered. I went through this history because I believe it is important to put the issues of digital monetizing and technological change in perspective.
These are some of the fundamental problems with the bill and how it works. We believe that the government has declared war on one of the principles of Canadian copyright, which is collective licensing. To demonstrate this, one does not have to look any further than the government's attack on the levy. The levy was a made in Canada solution that allowed for format-shifting while providing a badly needed stream of revenue to the artists. The levy worked on consensus. It worked on writable CDs. However, when we tried to update it to the MP3, we saw the Conservatives misrepresenting the levy, misrepresenting the costs. They have used it as a straw man in numerous political mailings.
Let us see what the national media had to say about this Tory attack on remuneration of artists. The Edmonton Journal said that the New Democratic Party's support for the levy seemed to be a “perfectly reasonable compromise” and that the industry minister misrepresented the contents of what was actually a “thoughtful compromise that upholds basic Canadian values of straight dealing”.
The National Post was even blunter. It said that the government's nonsensical boo, hiss, no new taxes response is just plain dumb.
Bill , as long as there are no digital locks, will allow for all manner of copying and backing-up on the pretense that it is technologically neutral. But it is clearly not technologically neutral, because it is going after one of the few revenue streams that exists for artists.
The government is saying it has all these fair-dealing exemptions for education, but let us look at some of the glaring irregularities of the bill. Under Bill , students who are taking long-distance courses will be forced to destroy their class notes after 30 days. Teachers will be forced to destroy their on-line classes. This is the digital equivalent of telling universities they have to burn their textbooks at the end of every session. What kind of government would force students to burn their class notes in the name of protecting copyright? No writer benefits from this, and no student benefits. This provision shows how badly out of whack the government is when it comes to understanding the potential for digital education.
We see these same punitive measures brought to bear against librarians. They will be forced to destroy inter-library loans after five days. We saw the government's full-on assault against the long form census and its opposition to knowledge and data. But to go after students and librarians with such dumbed-down, regressive approaches is something the New Democratic Party will not support in any way.
Let us look at the issue of the digital lock provision. The digital locks make a mockery of any claim of giving fair rights. The government says that we will get fair dealing rights for education and for reproduction for private purposes. People can make back-up copies; there will be copying rights for the print disabled; there is the so-called YouTube mash-up provision. But if there is a digital lock in place, all those rights are erased.
Clause 41.1 lays out very clear technological protection measures, which supersede the rights that citizens would otherwise enjoy. Thus Bill offers citizens' rights that they will not actually be able to access. What the government is doing is creating a two-tiered set of rights between digital and non-digital products. Instead of legal certainty, Canadian citizens will face arbitrary limitations on what should be their legal right of access.
It is simply not credible to say that this is WIPO-compliant. If we look at the WIPO treaties, digital locks are not guaranteed copyright rights. They are simply enforcement measures. At most, technological protection measures may be thought of as an adjunct to exclusive rights, but they cannot trump the rights that exist by law. In fact, if we look at how other countries have implemented WIPO, we see that there is no reason the government and this Parliament cannot set up a made-in-Canada provision that represents a balance on the digital locks provision.
In article 10 of the WIPO Copyright Treaty, it says that limitations such as the TPMs may be supported as long as they “do not conflict with a normal exploitation of the work”. That is exactly what the bill would do. It would override the normal exploitations of this work.
The other problem with this jailhouse approach to digital locks and digital issues is the question of whether it will even be able to pass a constitutional challenge. Dr. Jeremy de Beer raised this issue when he looked at the previous bill, Bill . He said that the digital rights provisions were a:
||—poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations.
He said that further iterations of Bill C-61 that did not take the fair dealing provisions of the Copyright Act into account could fail constitutional scrutiny. In fact, there are questions whether the bill with the digital locks provision will actually be able to succeed in a charter challenge.
Fundamentally, we can make the digital locks provisions work in order to protect copyright data, but if the government thinks those locks can simply override the existing rights that are guaranteed in the rest of the bill, it will have problems. The New Democratic Party certainly has problems with that.
At this point in going forward, the New Democratic Party is willing to work with all members of the House, all four parties, because we believe we must update Canada's copyright laws. We need to find a way to do it and we think it can be done.
We are looking for a sense from the government that it is willing to work with us. If it is willing to address some of the fundamental problems, we can deal with this in committee. However, if it takes the approach that any suggestions or implementations slightly different than the government's are somehow a threat and that it will not work with us, then we will not support Bill at third reading.
The New Democratic Party is willing to take this to committee. We are willing to work on these issues. We believe we can make very good made in Canada copyright legislation that will not only stand the test of this year and next year, but that will be looked at in other jurisdictions around the world as a way to find the balance that has so far been elusive in the digital copyright wars of the 15 years.
Madam Speaker, first, I agree with the point on which my hon. colleague began and ended his speech.
Yes, we are open to suggestions on how to improve this and ensure this goes forward. I appreciate the NDP's support to send the bill to a legislative committee. The reason why we would want to send it to a legislative committee, as I said, is so we can be open to receiving ideas that make sense.
I did want to push back and perhaps disagree with my hon. colleague, and he will have the last word to disagree with my disagreement. I have a couple of points.
First, I agree with him. Obviously the DMCA experience in the United States is something that we chose not to do as a government. We chose not to go in that direction.
There is one key element of the DMCA in the United States that he and I agree on and that we do not think is a good Canadian policy, and that is the idea of notice and take-down, which is in the American dynamic. We have proposed in the legislation notice and notice. We think that is pro-consumer and errs on the right of individual citizens rather than the presumption of guilt. We think that is the right thing to do.
His private member's bill with regard to the private copying levy is badly written. It is one thing to criticize the government for what is in the bill and another to criticize it for not putting things in the bill. There is a reason it does not address the private copying levy in the legislation. The proposals that came forward in our consultations were just unworkable. They did not make sense in the modern era.
The member's private member's bill is, with respect, badly written and it would not pass through the House of Commons even though the member may have some allies on the other side of the House of Commons who agree with him in principle. The member's own proposal is, frankly, unworkable.
With regard to education and libraries, the member criticized some elements of the bill. By the way, this is a perfect example in this very debate about the balance that our government has tried to strike. The Liberal critic for industry has said that our government has gone too far in support of students and suggested that we had not done enough to allow people who wrote textbooks to be compensated. My hon. colleague is saying that the things we put in place in the legislation with regard to education materials after a course is done go too far in the other direction.
Therefore, we have tried to strike the right balance. Did we get it right in the end? Well, time will tell. We think we have given a real genuine effort here to try to get it right.
With regard to libraries, the member said that librarians were upset about the legislation. That is factually not true. The Canadian Association of Research Libraries said, “we applaud the government”. It said that it had responded to the copyright reform concerns expressed by the library and education community. It said that the government had clearly listened to what the library and education community had said.
This is what we have tried to do with the bill. We have tried to get it right. If the member has a reasonable proposal, he should bring it forward. We tabled the legislation five months ago. We are waiting for substantive, specific amendments to it, which will actually improve it and ensure that Canada stays on the cutting edge of intellectual property law.
Mr. Speaker, on behalf of the constituents of , I am happy to join the debate on Bill , the copyright modernization act.
The last time we significantly amended the Copyright Act was in 1997. Like other countries, Canada continues to transition to a digital economy. This transition has had a profound effect on our artists, writers, musicians, software developers, filmmakers, photographers and other creators of copyright material.
For years, file sharing of music and video and large media storage in general has been possible, yet still a difficult task for most Canadians to accomplish. Today, transferring gigabytes is as easy as opening up the Internet browser. The world has changed and it is obvious Canada needs to keep pace to modernize its copyright legislation.
What has changed? Not long ago we were listening to eight-track tapes, cassettes and Sony Walkmans. We communicated through voice mail, not email, and fax, not instant messaging.
Today it is difficult to find children or adults alike who do not own an iPod or portable musical device. BlackBerrys, iPhones, laptops, iPads are seen everywhere and society has become dependent on them. Checking email and Facebook, sharing pictures and video, listening to music through one means or another have become integral parts of everyday life. Digital media is pervasive and omnipresent.
At one time Canada was a leader in the digital economy. In recent years though, our laws have fallen behind and we lag in global best practices. Our copyright laws are dated and we have received international criticism because of it. On this side of the House, we welcome modernization, but we want to do it right. We will agree to send the bill to committee at second reading. However, let me be clear. The bill needs work. It has numerous flaws and requires revisions and amendments at committee stage. The Liberal Party wants to make sure this work gets done.
Record labels, libraries, students, artists, authors, publishers, photographers, collective societies, video game creators, professors, consumers, film producers, educational resource centres to name a few have all come forward to show their discontent with the current status and structure of the bill. I have met with numerous stakeholders on this matter, and as my colleague from mentioned earlier, I have never had more requests for meetings and discussions than for Bill .
In summarizing the complaints, I heard the following: “The bill tries to deal with piracy, but instead, it strips the industries of millions”. Also, “Intellectual property is not only a legal right, it is a human right”.
According to Jim Fleck, chairman of Business for the Arts:
|| Hill Strategies reports that Canadian consumers spent $25.1 billion on culture goods and services in 2005, more than consumer spending on household furniture, appliances and tools ($24 billion)....The output by the culture sector totalled: $46 billion in 2007, which was 3.8% of Canada's real GDP. If we were to include the induced and indirect impact, the value-added climbs to $84.6 billion.... The Conference Board estimates that 1,000,000 jobs are created by the cultural sector, representing 7.1 per cent of Canada's total employment in 2007.
Liberals understand that the rights of creators need to be protected and maintained, yet the fundamental rights of Canadians to access digital media must also be respected. Our goal is to find that middle ground.
Today I will be addressing some key flaws of the bill, primarily: one, a ratified collective licensing regime; two, technological protection measures, TPMs; three, file sharing; and four, statutory damages.
First is collective licensing and fair dealing. In 2004 a Liberal government legislated to allow for institutions such as libraries, museums, schools, their teachers and students to have access to materials under a collective licensing regime for fair dealing. These institutions have rights to materials for studying purposes. Unfortunately, these rights can be taken for granted and misused.
While students are expected to use materials for a finite period of time, sometimes the temptation to keep music or video is too great and many times simply overlooked.
The bill as it stands lacks a clear definition of “fair dealing”. This is a key component for our party and we will seek that definition in committee. Our goals are to offer materials for educational purposes, eliminate abuse and allow authors, artists and creators of the materials fair compensation, but at the same time give our students fair and affordable ways to obtain that information.
Two is technological protection measures, or TPMs. The exact amount of losses due to piracy is anyone's guess. Some report it is a $5 billion loss to the music and video industries. For years, the solution was thought to be digital rights management, DRM. Billions of dollars have been spent on the creation of software embedded into digital files which monitor the purchase method, the date and the amount of times a file has been used and/or transferred. Although this practice appears foolproof for combatting piracy, arguments can easily be made about the anti-constitutional measures.
Bill does not address the fact that when consumers purchase digital files for personal use, consumers assume, and expect to have, complete usage of those files without limitations and without restrictions.
Digital locking, or TPM, in Bill seeks to go even further than DRM by using file lock mechanisms. The circumvention of TPM in this bill requires extensive review.
We believe the Copyright Act must allow Canadians who have legitimately purchased media files the ability to transfer their purchase onto personal devices for their own personal use or to format or time shift or to make personal backup copies on their computer as long as they are not doing so for the purposes of sale or transfer to others.
There has been a common ground between balancing the rights of the creator and satisfying the consumer. We do not believe that Bill does either one. We look forward to examining these options further and finding that common ground.
Three is file sharing. A fundamental right in the digital age is the ability to share files. The whole concept of the Internet at its inception was to do just that. Peer-to-peer, or P2P, connection is a standard business practice. It allows for large file sharing among co-workers, clients, developers and anyone with an Internet connection. P2P has become the single most effective way of sharing large digital media. Unfortunately, it has also become a means for piracy. When two computers can communicate with each other and allow for file sharing, there are no restrictions on what can be shared.
Do members remember Napster? The case was supposed to set the precedent in the world to combat abusive and illegal digital file sharing. Napster was forced to pay $100 million for its P2P methods and infringing practices. What followed was the birth of penalties for those who share copyrighted files over the Internet without paying for them, but as we know, the piracy continued.
As a way to disguise P2P connections, Bit torrents have become a common piracy technique. Torrents were designed to track multiple share points of files and help for fast and steady download. Torrents are easily found through any Google search.
How do we stop P2P? How do we stop bit torrents? Quite frankly, we cannot, but appropriate penalties are a start. Copyright laws are only as good as the enforcement that accompanies them. Certainly in the age of the Internet, until some of this is sorted out, it remains, as we say, the wild west.
Four is statutory damages. Bill defines new statutory damages for infringement of copyright, but once again it is regressive.
We have many concerns with this section. How effective can it be to decrease the statutory damages? The government is proposing to reduce infringement damages from $500 up to a maximum of $20,000, to as low as $100 up to a maximum of $5,000. A main focus of the damage is to target individuals who download music from a peer-to-peer file sharing service.
I have already made the argument that P2P cannot be stopped. If peer-to-peer cannot be stopped and it is being used for piracy, then damages must be commensurate with the severity of the infringement.
In conclusion, there is no easy solution for modernizing Canada's copyright laws. I will not pretend to have all the answers. However, I can commit to working with all stakeholders on one hand and looking after the fundamental rights of Canadians on the other.
Listening to music while on the bus, walking or jogging, or watching videos on a two-inch screen or hearing last night's news from a podcast have become a way of life.
At the end of the day, my colleagues and I on this side of the House understand that the rights of the creators need to be maintained and protected, yet the fundamental rights of Canadians must also be respected. Our goal is to find that happy middle ground.
Mr. Speaker, I am delighted to speak to the bill before the House today. According to the government and as we can read for ourselves, this bill amends the Copyright Act in order to update people's ability and capacity to access great works.
Over the next 15 minutes, I will try to make the government understand that the real way to update the current legislation involves first acknowledging that certain rights exist for the creators, authors, writers and artists who agree to share their gifts with the rest of society for education and research purposes. However, the government needs to acknowledge that royalties must be associated with this and that it is not true that institutions, individuals and corporations can use these works—whether books, movies or plays—without recognizing that royalties must be associated with that use.
I listened to the government members who spoke earlier and who would have us believe that these royalties are essentially a consumption tax. Nothing could be further from the truth. Basically, there are two important things to understand and which, we believe, are not necessarily mutually exclusive. One possibility is recognizing rights while ensuring that new players in new technology can have access to the works available. A compromise can be reached as long as the government agrees not to play into the hands of the major players. For example, Internet service providers come to mind. These providers offer public access through an open market using new technology.
What the government is trying to achieve and the consequences Bill will have are two different things. First, with regard to permission fees and licence fees, the bill does not ensure that the author is necessarily consulted, and thus, Bill C-32 puts an end to the right to decide whether or not to authorize use of a work. It puts and end to remuneration for use. That is what is of concern in terms of the principle and the concept behind fairness, because clause 29 of the bill talks about a concept of use related to a notion of fairness and fair dealing. This was defined back in 2004 by the Supreme Court. What have the consequences of that Supreme Court ruling been? It has given a great advantage to the users at the expense of our creators, our authors, our writers and our artists.
We must not forget this 2004 ruling because it laid the groundwork for unfair dealing, in our opinion, when it comes to our artists and creators. What does clause 29 of the bill say? It says that a work used for the purpose of private study, education, parody or satire does not infringe copyright. Accordingly, a work may be used as long as it is for private educational purposes, education or parody.
This notion of fairness is not defined in the bill. The first step was taken in 2004 by a Supreme Court ruling that gave a great advantage to the users at the expense of the creators and our artists.
My colleague the Canadian heritage critic pinpointed the problem with the bill and that is that it contains exceptions, which she calls the deadly sins. There are 17 exceptions in total. We on this side of the House are not saying there should be no exceptions. International conventions state that there may be exceptions, but they apply in certain special cases. It is important to remember that. This bill has 17 exceptions that flout Canada's international obligations, specifically the Berne Convention for the Protection of Literary and Artistic Works. This convention stipulates in article 9 that exceptions made for users must be reserved for certain special cases where reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
With these 17 exceptions, the government is flouting its international obligations. This bill ignores Canada's commitments and is unfair to authors and creators.
There are a lot of exceptions in this bill. One particularly problematic exception stands in opposition to what should, in theory, be a positive principle. It concerns educational institutions. Teachers will be able to use protected materials in their courses without obtaining permission to reproduce them. This applies to movies and plays, among other things. The problem is not that people will be disseminating these cultural and artistic works, but that schools, for example, will not be required to pay royalties if they reproduce works. That is the problem.
We have to ensure that everyone in our society has access to culture. Our young people need rapid access to our literary works and their authors, but we must not forget that these are artists whose livelihoods depend on this.
I was reading the latest statistics. In the education sector alone, there are 175 million copies of parts of copyrighted works in schools, CEGEPs and universities. The education sector alone provides $9 million per year to 23 Quebec authors and 1,000 Quebec publishers. People's economic livelihood depends on publishing and culture. Of course we want our young people to have access to culture, but we must also recognize that our creators have the right to fair compensation.
This exception, therefore, is pernicious, the more so because the term “education” is not defined in this bill. It could therefore be defined quite broadly and have a broad scope. Given that the term “education” is not defined in this bill, this exception for the education sector, which allows teachers to use literary works, reproduce them and distribute them to their students, will leave it up to the courts to determine whether this use complies with the law.
Of course, this will force artists and creators, many of whom already have relatively low incomes, to take their cases to court.
We will further impoverish our artists, who are only asking for recognition of their work. Royalties are a measure of fairness. Unfortunately, the Canadian government, with this exemption for education, is not doing any favours for Quebec's artists and publishers that provide works, books and educational materials to our schools.
There is another exemption, the one I call the YouTube exemption. It refers to the creation of a new work by using, free of charge, part or all of a work on condition that it is to be used for non-commercial purposes. In addition, there is no requirement to name the source unless it is reasonable in the circumstances to do so. Thus, another exception is created, and one that is unique in the world, found only in Canadian legislation.
It means that someone could very well use a work, song or music—for which the rights are protected in principle—without asking the author's permission and without paying the associated royalties. This could be the end of private rights for these authors. I will say it again. We must provide greater access to Quebec and Canadian culture, but we must recognize the work of our artists. Even though new gateways and platforms make the use of their work possible, this broader distribution must not exempt us from honouring our commitments and ensuring fairness for our artists.
There is also an exemption for private purposes. An individual may reproduce a legally obtained work on a medium he or she owns and provide access for private purposes.
Once again, there is a refusal to create a new category, and that affects the levies. The government thinks that this levy is a tax on consumers, but on this side of the House, we see it more as fair recognition for our artists' work—nothing more, nothing less. For the Conservative government, “levy for artists” equals “consumer tax”. That is not how we read it.
Other exceptions are created, such as communicating a work by telecommunication. The bill introduces a vague, flexible and inadequate notion. It says that the institution must take measures that can be reasonably expected to limit dissemination of the work. What are these measures? Again “that can reasonably be expected” is not defined, just like those fairness principles, even though the Supreme Court provided some direction on this in 2004. It is up to the courts to later determine the scope of the concepts presented in the bill, and therefore the artists will have to appear in court. With this bill, the government is deliberately impoverishing our artists.
The concept of “that can reasonably be expected” is also used in the exceptions covering visual presentations, examinations and inter-library loans.
The other exceptions cover works on the Internet, extending photocopy licence and backup copies.
This is no longer in line with the Berne convention, which authorized states to create exceptions in special cases. The government is creating systematic exceptions, at the expense of our authors and artists.
It would have been better to stop creating exceptions and to recognize that artists are entitled to a fair shake and to fair royalties. The government should have recognized that the author's permission is required before his works can be reproduced and distributed on new platforms.
What is wrong here is that with the locking approach, artists and artisans are responsible for controlling access to their products on the Internet, while the major Internet service providers are responsible for ensuring that these artists and artisans are appropriately acknowledged. Permission must be given for works to be issued on new digital platforms. We must ensure that our artists, who spend their time creating and making us dream, do not end up caught up in expensive legal battles. The federal government must take responsibility and amend the bill to better protect our creators and our artists.
Mr. Speaker, it is an honour to be here as I have been delving into this issue since 2004 when I was first elected and became a member of the Standing Committee on Canadian Heritage. Back then, we had to deal with what was from 1997 the major last reforms to copyright and then we went into a new bill in 2005, which was Bill . In 2008, we received Bill from the government but that was put aside because the Conservatives wanted to change the bill to become more technologically neutral. Those were the words by the earlier today.
This signifies the first time that we have had a fulsome debate in the House for quite some time because those prior bills never had a fair hearing within the House. We had a few debates here and there but not a fulsome debate like we are having today. I congratulate my colleagues, the , the , the critic from the Bloc Québécois and the critic from the NDP, for their speeches. They all, in their own way, put out well researched speeches with some incredibly valid points.
Once again I will reiterate that our party will vote at second reading to put this to a committee so we can give it a fair hearing. When I first looked at this bill, and despite the problems that I personally have with it, I wondered if it needed to be fundamentally changed before we reached second reading. I knew that if we voted yes at second reading, we would be accepting, by and large, the principles in the bill and, therefore, major amendments to change the direction of the bill in certain ways could not be done as they would be overruled by the Speaker.
At that point during the discussion, we decided to go ahead because we needed balanced copyright legislation. It is long overdue, no doubt about it, and everyone should perhaps grab just a little bit of blame in all of that as this discussion has gone on. We signed WIPO treaties in 1996, one dealing with the Internet and the other one dealing with phonograms. Since then, however, we have yet to ratify, pending, of course, the right amount of legislation or balanced copyright legislation. In this instance, Bill , which is in front of us now, was really borne out of the ashes of other bills that have died on the order paper.
Going back to copyright and the issue therein, how do artists receive the right amount of remuneration for the work they have done? I will go back to the origins of copyright. The first time Canada had copyright legislation was in 1868. We felt the need, even back then, for artists to protect what they create but that it would be balanced with the right of users to have access to this material which was very important going back to the beginning and the genesis of the printing presses.
In 1868 and years thereafter, it started in Great Britain, moved its way to Canada and through the United States where it felt the same urge, need and desire to protect artists' rights and, at the same time, mass distribution for this material so it could be accessed by the public. However, by protecting some of this material we did not want to protect it to the point where we kept it under wraps from the general public and people could not get access to it.
The year 1875 was another time when Canada went full ahead and made changes to copyright legislation so that it would be more in line with other countries. Even at the very beginning of copyright legislation there was always the compulsion to bring it in line with what is international standards as artists' work really knows no boundaries. That was at a time when we were printing books for mass distribution. We did not have anything like the radio or record players but now, in the digital age with the Internet, the global village has become that much smaller.
In the very beginning, if memory serves me correctly, I believe the origins of copyright internationally was that British books were being distributed throughout the British Empire and there needed to be certain protections for that as it was distributed to countries like Australia, India or Canada, throughout the British Commonwealth.
The first time Canada saw a glimpse of modern copyright legislation, or at least something that was considered for quite some time to be the cornerstone of copyright legislation, came in 1924. Around that time it was comprehensive enough that it covered many aspects of what was out there in the public realm. Again I go back to books, certain recordings, photographs and that sort of thing, obviously at the very early stages.
As my colleague from the NDP pointed out earlier, the arguments that we are putting forth here today started in the latter part of the 19th century. He used the example of the rolling piano where music was played on an automatic piano, which we have seen in the movies, and whether that would destroy a piano player's career. Obviously, it did not. After that, would recorded music destroy the concert or would people stop going to concerts because they now had an album that featured the artist's recordings? That was not the case as, of course, concerts have increased dramatically from the time of their inception.
From 1924, we went on to make some substantial amendments to the legislation, obviously with the changing times, in 1985 as well as in 1997. Both governments, Progressive Conservative and Liberal, have made substantial changes throughout the years. There seems to be a camaraderie or general understanding to reach out to other parties within this House to ensure we have the right legislation.
However, so many stakeholders are involved in this that there needs to be a comprehensive look at how we deal with copyright and, in order to do that, it needs to receive a mature debate. Today we are debating the bill at second reading and it seems that we are now laying the building blocks for what is about to be a fulsome debate on where copyright is going in this digital age.
I also want to talk briefly about the other bills.
Bill C-60, which was introduced in 2005, received quite a bit of stakeholder response and a lot of it dealing with the fact that we are getting into the digital age. A lot of this was spurred on by the fact that all of a sudden we were sitting in front of a wide array of music selection that we did not need to pay for. It was free. This was the origin of Nabster and LimeWire. With those devices, all of a sudden the consumer had the ultimate choice. Not only was it available in many arrays and all types of genres, it was actually free. That was a fundamental misstep, a fundamental breaking of the contract that we as government have with artists, which is to say that we will help them protect their work.
Nabster has gone by the wayside, or at least the free version has, and other equivalent facsimiles of how that type of music is distributed, meaning peer-to-peer sharing. They have disappeared but there are business models out there. I personally purchase music at 99¢ a song, and I am fine with that. I do not have a very large collection but I do have a collection that is big enough that I gleefully pay for it.
One of the issues that came from peer-to-peer sharing and one of the issues that has not been discussed yet is the information out there about what is illegal. This is something that has been dear to my heart as an issue. As my colleague pointed out earlier, in the United States right now this is incredibly litigious. The lawyers are running overtime when it comes to areas of copyright. A lot of the rules that are put down in America right now are really laid down by court judgments throughout the court system. To a certain degree that has happened here as well, but not to that extent.
In America there were several illustrations where children downloading music in their basements were being sued by major companies in multi-million dollar lawsuits. Obviously they cannot be involved in multi-million dollar lawsuits because there is no way they can get the money. Instead, the companies felt compelled to make a statement and made their statement by taking the most vulnerable in society to court. I will not come down too hard on companies for doing that as they had a legitimate concern about people stealing their product. However, at the same time, they did it with a great deal of haste and aggression that I would not agree with. I think that we, as government, should address that issue.
However, the result of that was the introduction of Bill C-60 in 2005, which, as I stated previously, created a lot of input and for all good reasons. The government changed in 2006 and we found ourselves going back in 2008 with Bill C-61. Bill C-61 went off in different directions from Bill C-60 in many cases but some of the fundamental aspects remained intact.
However, the problem was that in many cases people felt that it had been rushed through too quickly or that it had never received the right debate within the House. Many of the stakeholders thought Bill C-61, because it was illustrative, was maybe too illustrative because it set out certain examples and put people in corners. Basically it was too smothering, as someone told me. Bill C-61 found itself it to be too much for everybody to handle. At this point it went back to the drawing board. As we have heard this morning, I think “technologically neutral” was the response that came back.
Bill is the latest version of this and hopefully with the agreement of members of this House it will actually make a fulsome attempt to put this into law, and that way the next time we deal with this will be as something that comes way down the pipeline.
One of the issues that keeps being raised is peer-to-peer sharing. I have always made the comment that the problem with having legislation that is too stringent and too detailed in nature is that it becomes oppressive to the point where it just does not adapt. I have said it before and I will say it again. It seems that whenever there is a technical measure by which people are not allowed to get to a certain piece of art, roadblocks are put up around it. Governments do it through regulation to keep people out for access reasons.
However, once that it is put in, I have a 16-year-old son who could get around it within 48 hours. I am not exaggerating because I have seen it happen. I would not want to say that it was my son because I would get him in trouble since this is a public forum, but I have seen it happen. Teenagers do not like to be told that they cannot access certain material for whatever reason.
In the old days, when we were told that we could not access certain material for whatever reason, we would get upset if we could not access certain art or music because it broke Canadian laws or regulations on content. Nowadays, when roadblocks are put up to deny teenagers access, they laugh. It is a big joke. In essence, they find that it is not a big deal because they will find it and get to it in 48 hours. They have done it before and they will do it again.
The concept is that they are breaking the law. Artists have protection around their material that they need to make a living. If a particular parent is sitting at home and is not familiar with the new ways for children to attain music, movies or any type of entertainment nowadays, a parent would be horrified. Parents would be horrified if someone were to call them at home and say that he or she had just caught their child shoplifting at HMV and that the child had tried to walk out of the building with a CD in his or her pocket.
Some kids can download about 20 to 25 CDs from their computer in the run of five minutes. That is okay. Some kids tell their dads that they just downloaded the new movie that is out in the theatres onto CD. A lot of parents just do not pay any attention and just say “Okay, that is great. Let us go watch it.” It is illegal.
I hope part of the debate elevates copyright infringement and how the protections in place for artists are there for a reason, which is to protect the artists' work. It is stealing. We can call it that. In the end, artists are unable to make a living if their material is not protected.
On the other hand, one of the provisions in the bill talks about digital locks. We have all talked about this. We have all heard about this. Is it too stringent in this particular bill? It needs to be discussed. Is it a situation where digital locks cannot be touched? I am not so sure.
I said earlier that I have a concern about the fact that one particular company may have a digital lock in place over certain material. If someone downloads a piece of music or a movie, that piece of music or that movie can only be listened to or viewed by that company's equipment. I have concerns about that because the individual probably purchased the movie legally but is locked in a corner as to how he or she can use it. That deserves to be revisited.
I refuse to believe that the digital lock issue is cut and dried. Educators have said that the digital lock provisions would be too harsh on them now that they have an educational exemption. We have one group weighed off against the other. That involves a full debate. That has to be talked about because many people have a point. I met yesterday with the Canadian Federation of Students who brought that issue up.
On the other hand, some artists are happily ensconced and making a good living by the fact that digital locks allow their material to be protected. Software companies are a case in point.
Canada has a fantastic software industry for games, the intellectual property of video games, Xbox, PlayStation. We have a great industry here and it certainly deserves protection. We need to look at this material with open minds and consider debating it.
Unfortunately the debate earlier was going in different directions regarding the levy that was imposed upon CDs, DVDs or DVDRs and the way artists are able to achieve money to protect their livelihoods. They came up with a solution in the late nineties but it is not within this bill. The government does not agree with it but it deserves to be discussed. I hope the government will be open to revisiting that issue once again when we get this legislation in committee.
There are other issues as well in these changing times. I mentioned the downloading, or making a copy, of music or movies. This is copyright.
This debate started back in 2005. It is not that long ago, if we think about it. We started out with P2P, or peer-to-peer sharing. Nowadays we have live streaming, where no copy is involved. An individual just logs on and live streams what he or she wants. YouTube is a classic example. This technology is going at a blistering speed in the digital age and now we have to keep up.
I was happy to hear the minister talk about a five-year review, and I congratulate him on that. That goes a long way toward looking at legislation once again. Personally, I feel that is the way we should be going.
Bill contains a number of other measures such as those regarding mashups and the creation of a new exemption for user-generated content, which broadly written, could create an opening for abuse. That is true. We have to consider that.
Statutory damage is another issue we have to look at.
Fair dealing in general has to be looked at, fair dealing for access for consumers, fair dealing for parody, satire, but fair dealing for education. We have had a lot of input on that. Some people are very concerned about it, artists in particular.
Some artistry groups have said that an open-minded, fair dealing provision puts in the hands of the courts what should be determined by Parliament. That is something we have to consider. Again, it becomes incredibly litigious. Fair dealing has that possibility so we have to consider that. We have to draft legislation to make sure that does not happen, in my humble opinion. Artist groups are saying that the full impact of an open-ended fair dealing provision may be difficult to predict but the fact that there will be unintended consequences is wholly predictable.
The intent of the education provisions put forward by people from the University of Ottawa and by the Canadian Federation of Students is not to destroy the livelihoods of people who write textbooks. So again we have the interests of one weighed off against the interests of the other. We have to come down the middle in what I consider to be fair copyright legislation.
Mr. Speaker, I am pleased to have the opportunity to participate in the debate on Bill , the copyright modernization act.
It is interesting that we are debating copyright in the House of Commons again. This corner of the House has been clear and consistent over many years about the importance of updating Canada's copyright legislation and regime.
New Democrats have always said, and our spokesperson on this issue, the member for , said it again this morning, that we believe copyright reform is in the centre of what we need to do around digital innovation. It is the centrepiece of a digital innovation strategy. It is not the only piece, but it is the key component of how we approach that. The debate today and the expansion of the Internet and the technological changes we have seen bring that home daily for Canadians.
Our digital innovation strategy would not just be about copyright reform. It would be about codifying the protection for net neutrality to ensure the democracy on the Internet is protected and preserved. The attempts to offer tiered services so some people get their Internet services faster than others and some content goes faster than others need to be addressed. New Democrats have put forward proposals to ensure net neutrality.
We also believe that there needs to be a commitment to national benchmarks for broadband access. Canada needs to put the whole question of broadband access on the front burner to ensure that all Canadians have the broadband access they need to survive and flourish in the current environment.
We are falling behind other countries that are doing more in this area. Australia is a great example of that. It was a key proposal in Australia over a number of years, and it factored again in its most recent election, about it establishment of a national broadband network, which it calls fibre to home, an open access network. With the latest fibre optic technology, it goes to 93% of homes and businesses in Australia. It is a very fast service, at 100 megabits per second.
This is a huge infrastructure project for Australia, but it has served Australia well. It is a huge investment. It is the largest infrastructure investment in the history of Australia, a megaproject that will put the Australians in good stead for the future. We should consider this kind of thing in Canada as well.
Another component of a digital innovation strategy, which the New Democrats believe is very important, is to enhance the role of digital cultural programs to ensure Canadians can fully participate as international citizens within a democratic culturally vibrant public commons. That public commons has changed with the introduction of the Internet. I think all of us realize our lives are very different because of that development.
There are very key things that we need to look at as part of not only this specific discussion about copyright reform, but the broader context of copyright reform in Canada and digital innovation as well.
Bill is the third attempt to update Canada's copyright laws in the last six years. We have not made any changes to our copyright law since 1997. The previous Liberal government, the Martin government, tried to bring in changes to the copyright regime at the end of its term with Bill C-60.
When the current government came to power, it introduced Bill C-61 nearly two years ago, but withdrew the bill because of very broad criticism. It was too cumbersome and too closely modelled on the restrictive digital millennium copyright act in the United States. There have been significant problems with the U.S. legislation, which I am sure we do not want to repeat in Canada.
Bill is intended to strike a balance between corporate and consumer interests when it comes to copyright interest.
Regarding some of the highlights of the bill, we are told that the intention of Bill is to be technologically neutral, that it should apply across a broad range of devices and technologies with a view to ensuring adaptability to a constantly evolving technology environment. We know this is crucial to any new legislation on copyright. It cannot be legislation that becomes outdated almost as quickly as it is passed. It has to be something that serves us into the future. We have to get the broad principles of the legislation right or it will be outdated by the time it even passes through Parliament.
The government has also stated that its aim in updating the Copyright Act is not to punish individual users, but rather to focus its deterrence and enforcement efforts on distributors and large websites that illegally host copyrighted content. We will have to see whether that goal is actually accomplished. There is some criticism that the bill does not have that kind of focus and does not accomplish that goal, but the government has said it hopes it does.
What is included in the bill?
The bill would extend the term of copyright for performers and producers to 50 years from the time of publication of a musical performance.
It would create a new "making available" right in accordance with the WIPO treaties. This measure would give copyright owners exclusive control over how their content would be made available on the Internet.
It would introduce a mandatory review of the Copyright Act to take place very five years. Given the pace of technological change and given that we want to ensure the legislation actually does what it is intended to do, this mandatory review is very crucial.
The bill would formally enshrine in legislation commonplace grey area practices that would enable users to record TV programs for later viewing, or time-shifting, as long as they did not compile a library of recorded content. It would allow for the transfer of songs from CDs onto MP3 players, for instance, or format-shifting, and it would allow folks to make backup copies.
The legislation would also create new limited exceptions to the fair dealing provision of the Copyright Act, including exceptions for educators and for parody and satire. Canadian artists have been demanding this.
It would also create an exception for content creators that would enable the circumvention of DRMs through the express purpose of reverse engineering, for encryption research, for security testing, for perceptual disability and for software interoperability.
The bill would also introduce a new so-called YouTube exemption to deal with mashups that would allow Canadian users to compile clips of copyrighted works into a remixed work, as long as it was not created for commercial purposes.
Bill would also create a new exception for broadcasters to allow them to copy music for their operations.
The bill would create a carve out for network locks on cellphones.
The bill would also reduce statutory damages from a maximum fine of $20,000 per copyrighted work to a one-time maximum penalty of $5,000 in situations in which copyrighted works had been illegally accessed for non-commercial purposes.
A number of changes are included in the legislation, but that does not mean there are not problems with what is there. New Democrats have identified two key problems with how the Conservative government has approached copyright.
The rights that are offered in the fair dealing, or mashup and parity exemptions, can be overridden by the heavy legal protections being put in place for digital locks. Under Bill , it would be illegal to break a digital lock, even if that lock prevented one from accessing material that one would otherwise be legally entitled to access. In fact, it treats the breaking of digital locks for personal use the same as if the lock were being broken for commercial counterfeiting. The whole question of the use of digital locks and their application, the extent to which they can be applied and how that conflicts with the rights of consumers, which the bill apparently tries to protect, and how those two interact is a huge problem with this legislation.
Consumers are guaranteed certain rights in the bill, but the reality is the holder, the manufacturer or the digital lock producer has the final say so, and those digital locks do seem to override the rights of consumers when it comes to the legislation.
That is a huge problem with Bill . The Conservatives might say that under the World Intellectual Property Organization agreement this is something that is necessary. While those things need to be considered given that commitment, other countries have taken different approaches. So there are alternative ways to deal with this, rather than this reliance on digital locks. That is something that must be discussed further at the committee and could be a deal breaker in terms of the legislation.
Another serious problem with the bill is that a number of previous revenue streams for artists' organizations appear to be undermined through exemptions and changes. The most noticeable one is the government's decision not to extend the private copying levy on CDs to music playing devices. This is a very serious problem. The whole question of how we respond, how we monetize, how we make sure that artists are remunerated for the work they do, given the changing technology, and how we make sure that there is money going into creators' pockets, given these new technologies, is something that we have struggled with for over a century.
Earlier today the NDP's Canadian heritage critic, our spokesperson on this issue, went through the whole history of how that worked from the last century, starting with John Philip Sousa denouncing the threat of mechanical music, the roller piano. He said the technology would destroy the livelihood of American musicians. Music publishers, people who publish sheet music, were similarly concerned about the introduction of the record player. They thought that would mean the end of artists being effectively or appropriately remunerated for their work.
The radio was new technology and it was thought that it too would end the ability of creators to be properly remunerated for their work. But we found ways through all of those issues, and that brings us up to today. So the scenario has not changed, and the need for creativity continues as well.
Here in Canada, when we were faced with the situation of artists losing remuneration because of people copying their works onto blank cassettes and blank CDs to make mixed tapes, and so on, they were not being compensated. Artists were not being compensated, and that was a serious issue in terms of their incomes. We found a made-in-Canada solution, which was to introduce a levy on blank cassettes and CDs, a levy that is paid to a copyright collective and then paid to creators, to artists. It has been hugely successful in Canada and has been very important to creators in terms of maintaining their income and ensuring that they were properly compensated for their work.
That continues to be an important approach that has broad support. I know New Democrats have consistently said this is something that we should be considering today as well, extending that levy to music playing devices such as iPods and MP3 players so that artists could be compensated appropriately for the works that are transferred onto those devices.
There is support for this among creators as well. Alain Pineau, the national director of the Canadian Conference of the Arts, has said that the bill's failure to extend copyright collectives into the digital area is a huge problem and that it bypasses that solution in favour of lawsuits.
If we had the choice of engaging a system that we worked out and developed here in Canada, which has been hugely successful, which has met the goals of ensuring that artists and creators are properly remunerated for their work, if we had the choice between that and forcing creators and publishers into court against consumers, the choice for me is absolutely clear that the levy is the way to go.
Unfortunately, the Conservatives have politicized the conversation about the levy. They have talked about it as if it were a tax. It is not a tax. It is a levy that is directed for a specific purpose, and I think it is a purpose that Canadians can support.
I think Canadians want to make sure that artists are appropriately compensated for their work and that they make an appropriate living from the important work they do from which we all benefit. I think that is something that Canadians would get behind.
It is a system that is in place; it is not a novel idea. It is a system that was criticized when it was first brought in, but I think that criticism died down when the fairness of the system became widely apparent.
That is another very serious problem with this legislation. We want to make sure that there is a system of copyright based on the principles of fair compensation for creators and artists and access to consumers. Those are very appropriate and needed principles. Remuneration of artists and creators for their work is crucial to the ongoing cultural viability of Canada and to the Canadian cultural sector.
Access is crucial for people in Canada who enjoy the work of creators and artists. I do not think that criminalizing consumers, putting the emphasis on finding ways to go after people who violate copyright, is the way to go. It takes its inspiration from the U.S. Digital Millennium Copyright Act, which we know has been a huge failure in a number of cases.
We have seen in the United States where children, parents and others have been sued, usually by large recording companies, for the violation of copyright, in a way that I think any reasonable person would see as unfair and inappropriate. This aspect of the American legislation is something that I hope we would not be copying in Canada. We should put a digital lock on that idea because it is just not appropriate for use here, especially when we have a solution that we created in this country and has served us well.
New Democrats also support the idea of collective licensing. We support fair access for educational materials, and in this bill there is a very troubling provision that digital lessons for long-distance learning would have to be destroyed within 30 days of the end of the course. This would treat students in digital learning environments as second-class citizens and undermine the potential of new learning opportunities.
My colleague has likened this provision to book burning. Requiring the destruction of those course materials within a time period at the end of the course really goes against the kind of freedom of intellectual inquiry that we want to stimulate in Canada. It amounts to a digital equivalent of book burning, hardly something that we want to be encouraging in an educational setting.
As well, the requirement that teachers would have to destroy lesson plans, as contained in clause 27 of this legislation, is extremely troubling. We want to encourage people to use distance education as a way of upgrading skills and getting the education and training they require, but we also want to make sure they have access to the materials they need to gain that education. Sometimes those materials are required for ongoing purposes. Clause 27 of this bill is a very serious issue in that it requires the destruction of course materials and lesson plans. Certainly it will be something that we will raise as best we can in the coming discussions.
There is much that we have to talk about on this issue of copyright legislation. We tried and we are here again debating it in the House of Commons after a number of ill-fated attempts. I am not sure that we have found the right legislation yet, but the New Democrats are here to participate in that debate and work to see if we can improve the legislation. Hopefully that is possible, but if not, we may have to make other decisions on it.
We want to work with everyone on whom this legislation would have an impact, to see if we can find an appropriate copyright regime for Canada for the 21st century and for a time of changing technology.
Mr. Speaker, I am pleased to rise to speak to Bill .
I would like to start by praising the member for . He is the first digital affairs critic in the history of Parliament, named by our leader to push the government on digital affairs. He has a background as an artist who has depended on copyright. This bill is a result of his endless efforts to try to get the government to understand, after four years of sitting on its derriere, that they had to take action on copyright. It is because of the member for that the government has moved at all.
There are positive provisions in the bill. But as with virtually everything else the government has done, there is an element of ineptness, whether it appears in bad financial management, the treatment of veterans, or corruption inside the government. In fact, everything that the government promised four years ago it has managed to botch or deliberately mishandle.
In this case, we see provisions that we can only liken to digital torches and pitchforks. Having been thrown into the bill, these provisions diminish some of the good elements that the member for was able to promote and put into effect.
We have been calling for a mandatory review of the Copyright Act. When we look at the history of copyright and the new technology, we see that this type of mandated review is absolutely essential.
We have new exceptions to the fair-dealing provisions of the Copyright Act. They create an exception for content creators that would enable the circumvention of DRM for the express purpose of reverse engineering. At the same time, they introduce a number of exceptions that artists have called for. But the problem is that the negative elements of the bill overshadow these positive elements.
Here we have the introduction of long-overdue copyright legislation, something the government has been sitting on for four years. But now we see that, as a result of mishandling, this copyright legislation is bringing as much bad as good.
This is a challenge for Parliament. In this corner of the House, the member for has expressed our opinion that this legislation is long overdue. There are important elements that have to be brought forward, but at the same time, the digital torches and pitchfork of the bill have to be dealt with in committee. Though we would favour pushing this forward to committee, we recognize that the committee will have much work to do to fix this the bill.
The member for talked about the history of copyright, about how new technologies have often been feared by those with vested interests in existing technologies. Player pianos, recordings, radios, computer access to music: all these new technologies experienced obstruction from established interests attempting to protect themselves.
Owing to the hard work of the first digital affairs critic in Canadian parliamentary history, the NDP is pushing forward with what we feel is essential, and that is a balanced approach.
This bill does not have that balance. That is the fundamental problem. The bill ignores the three key components that would give us a balanced approach: copyright maintenance, public access to artistic productions, and rewards for artists. This balance has not yet been achieved in the bill, despite the efforts of the member for to inform the government and lead it in the right direction.
What are the key problems?
First, there are the digital locks.
Second, to provide artists with reliable revenue streams, we proposed extending the levy on materials for music-playing devices. That was an adult approach. We are saying that we need to extend the levy for new devices to ensure that artists receive the remuneration that they need to feed their families. The current government, however, has childishly challenged the adult proposals of the NDP. It has given this legislation a remedy that only large corporations could use: the so-called court remedy. If we go to court, we have to pay a lawyer. Struggling artists cannot do that. That is why there has been so much criticism of this bill.
Third, there is the whole issue of collective licensing, of fair access to educational materials. This is not in the bill. Yet it is something that New Democrats, notably the member for , have put forward as a principle essential to all copyright legislation.
This omission is perhaps the most egregious aspect of this bill. It is one of these digital torches and pitchforks. I am going to read an excerpt from Bill . This is what it says about students and educational institutes. This is the famous clause 27 that my colleague, the member for , cited earlier. It contains new provisions that would add a new section to 30.01 of the Copyright Act. It says it is not an infringement of copyright for a student to receive a lesson. “However, the student shall destroy the reproduction within 30 days after the day on which the students who are enrolled in the course...have received their final course evaluations”.
That is the famous 30-day, retroactive book-burning clause of this copyright. It is absolutely absurd that those in the gallery, students across the country, would have to destroy these educational materials 30 days after they received their final course evaluation. It seems absurd. When I first heard about this, I said that the member for could not be right. But he was right again: these provisions are clearly in the bill.
It goes on, and it gets worse. Here is the legal mandate:
|| The educational institution and any person acting under its authority...shall (a) destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course...have received their final course evaluations;
The university, the college, the educational institution has to destroy the material. The student has to destroy the material. Penalties kick in if they do not destroy the material. This is retroactive book burning. This takes us back to the Middle Ages. It is digital torches and pitchforks. It is absolutely absurd. It is laughable that the government would even bring forward such provisions, but there they are in the bill. That is why we are saying that we will not stand for it. We are going to ensure that those provisions are taken out at committee, because they would create two classes of students in this country.
It creates a class of students, largely urban, who can access educational institutions very easily. In the world's largest democracy, which at length and breadth is eight million square kilometres, we cannot have students in northern communities, rural communities and aboriginal communities destroying the material they use online to try to get to the next level of their education.
This is yet another attack by the government on rural and northern Canadians. There seems to be a lot of it. The government simply does not seem to like rural Canada. It likes to use rural Canadians, but does not seem to like rural Canada very much if it put these provisions in the bill.
It goes on to say that a library, archive or museum or a person acting under the authority of one must take measures to prevent the person who has requested it from using the digital copy for more than five business days from the day on which the person first uses it.
Libraries, archives and museums, particularly those in rural areas but also those right across the country, have to prevent people from using a digital copy for more than five business days otherwise they will be in contravention of the act. That is absolutely absurd. What was the government thinking when it put provisions such as the 30 day retroactive book burning and the 5 day retroactive library burning in the act? These are absurd provisions. It is unfortunate that these provisions overshadow some of the good provisions the NDP was able to push the government to observe.
As I mentioned earlier, there are some positive provisions in the bill. However, here is the rub and the symbol of the government's ineptness on digital issues, and that is the digital lock.
Despite all of the principles that are put into play, the positive aspects of the bill and the exemptions, we hit the digital pitchfork at clause 41.1(a). This is not a long a clause at all. It says very simply “No person shall circumvent a technological protection measure”; that is TPMs, or digital locks. This means that despite all the protections, expansions and exceptions that may be in the act, it is overridden by clause 41.1(1), which simply put says a person cannot circumvent.
What does that mean? We are talking about the government imposing penalties of $5,000. It could be less. In clauses 41.19 and 41.2, we see what the courts are directed to do. This is a court issue. We are talking about protections and exceptions. If a company decides to put a digital lock on and a person even attempts to exercise the exceptions in the act, that individual is out of luck.
Clause 41.19 states that:
|| A court may reduce or remit the amount of damages it awards in the circumstances described in subsection 41.1(1) if the defendant satisfies the court that the defendant was not aware, and had no reasonable grounds to believe, that the defendant’s acts constituted a contravention of that subsection.
In other words, there may be a reduction if the defendant defends himself or herself. We might be talking about young kids or teenagers. We might be talking about students. We might be talking about librarians. Who knows. In that case, the person has to defend himself or herself in court.
We have talked about the five day retroactive book burning and the thirty day retroactive student book burning. Clause 41.2 states that if a court finds the defendant that is a library, archive, museum or an educational institution has contravened these sections and the defendant satisfies the court that he or she was not aware that his or her actions constituted a contravention of that subsection, the plaintiff is not entitled to any remedy other than an injunction.
These are not small exceptions. This imposes a digital lock above and beyond anything else. Therefore, the good components of the act, which we mentioned earlier, are then subjected to digital lock, the TPM, that the government has included in its legislation in the now infamous section 41.1(a). People just simply cannot contravene or circumvent a digital lock. That is absurd.
Here is what some of the folks have said about the bill.
The Business Coalition for Balanced Copyright has said, “some parts of the legislation unfairly restrict consumer freedom and need to be revised before being passed by Parliament such as the inability to circumvent digital locks for private use”.
The Retail Council of Canada has said, “parts of the legislation unfairly restrict consumer freedom and choice and need to be revised before being passed by Parliament”.
The Association of Universities and Colleges of Canada is concerned about the overly strict prohibition against circumvention of technical measures.
The Canadian Booksellers Association would like to see the government allow the public, particularly students and educators, to circumvent digital locks on materials sought for educational and strictly non-commercial purposes.
The Canadian Library Association has said it “is disappointed that longstanding rights, the heart of copyright's balance, as well as the new rights, are all tempered by the over-reach of digital locks”. I talked about that earlier. This is what our critic on digital affairs and the NDP have brought forward, that balance.
Today, in the newspaper, Alain Pineau, national director of the Canadian Conference of the Arts, said that it bypassed the issue of extending copyright collectives in favour of lawsuits.
We are hearing concerns about how the legislation has been put forward from a wide variety of sources across the country. Earlier the member for talked about the positive comments about the levy we proposed for artists. The National Post and the Edmonton Journal were two of those newspapers cited.
We very clearly have public and organizations all saying that the NDP is right to criticize aspects of the bill. That is what we have done. The member for has pushed the government. We will ensure that the ineptitude of the government does not hurt the bill and that we can get the digital and digital pitchforks out of Bill before it comes back to Parliament for consideration.