CC11 Committee Meeting

The Legislative Committee on Bill C-11 met in a televised session at 3:32 p.m. this day, in Room C-110, 1 Wellington Street, the Chair, Glenn Thibeault, presiding.

The Committee commenced its clause-by-clause study of the Bill.

Pursuant to Standing Order 75(1), consideration of the Preamble and Clause 1 was postponed.

The Chair called Clause 2.

Anne-Marie Monteith, Robert DuPelle, Gerard Peets and Drew Olsen answered questions.

Clause 2 carried on division.

Clause 3 carried on division.

Clause 4 carried on division.

On new Clause 4.1,

“4.1 The Act is amended by adding the following after section 3:

4.1 In this section and sections 4.2 to 4.9,

“art market professional” means:

(a) an auctioneer,

(b) the owner or operator of an art gallery,

(c) the owner or operator of a museum,

(d) an art dealer,

(e) an antique dealer, or

(f) a person otherwise involved in the business of dealing in artistic works;

“resale right” means the right described in subsection 4.2(1);

“resale royalty” means the royalty described in subsection 4.2(3);

“sale price” means the price paid by the buyer for the work, but does not include any buyer's premium or other fee or tax payable on the sale;

“work” means an artistic work, other than a map, chart, plan or architectural work, and includes a collage, print, lithograph, tapestry and ceramic or glassware, but does not include a copy of a work unless the copy is one of a limited number that has been made by the author or with their authorization.

4.2 (1) The author of a work in which copyright subsists shall have a right to a resale royalty on any sale of the work for $1,000 or more that is a resale subsequent to the first transfer of ownership by the author.

(2) The resale right in a work continues to subsist as long as copyright subsists in the work.

(3) The resale royalty is an amount equal to five per cent of the sale price.

(4) For the purpose of subsection (1), “first transfer of ownership“ includes

(a) a donation or gift by the author;

(b) a testamentary disposition by the author or an intestate succession; and

(c) the disposal of the work by a trustee in bankruptcy for the purposes of realization of the author’s estate.

4.3 (1) In the case of a work of joint authorship, the resale right is the property of the authors as owners in common.

(2) The resale right is held by joint authors in equal shares unless otherwise agreed in writing.

4.4 The resale right is unassignable and inalienable and may not be waived.

4.5 (1) The liability to pay the resale royalty arises at the time of the sale described in subsection 4.2(1).

(2) The following persons are jointly and severally liable to pay the resale royalty:

(a) the seller of the work or, if there is more than one seller, all of the sellers; and

(b) every person who acted in the capacity of an art market professional as agent for the seller.

4.6 The resale right conferred by subsection 4.2(1) applies only if the author was, at the date of the sale described in that subsection, a citizen, subject or person ordinarily resident in a treaty country.

4.7 (1) The resale right may only be exercised through a collective society.

(2) If the holder of a resale right has not transferred the management of that right to a collective society, the Board shall designate a collective society to manage the resale right on behalf of the holder.

(3) A holder to whom subsection (2) applies has the same rights and obligations in respect of the management of that right as a holder who has transferred the management of the right to a collective society.

4.8 (1) The holder of a resale right has the right to obtain, on a confidential basis, all information regarding a sale described in subsection 4.2(1) that is necessary to establish the amount of the resale royalty due and, if applicable, the name and address of the person responsible for paying the resale royalty.

(2) The holder of a resale right may submit a written request for the information referred to in subsection (1) to any person referred to in subsection 4.5(2)., and that person shall take all reasonable steps to provide that information to the holder within 90 days after the day on which the request was received.

(3) If the person referred to in subsection (2) fails to provide the requested information within the 90-day period, the holder of the resale right may apply to a court of competent jurisdiction for an order requiring the person to whom the request is made to supply the information.

4.9 On the death of the holder of a resale right in respect of a work, the resale right passes to

(a) the person to whom that right is specifically bequeathed;

(b) where there is no specific bequest of the resale right and the holder dies testate in respect of the copyright in the work, the person to whom that copyright is bequeathed; or

(c) where there is no person described in paragraph (a) or (b), the person entitled to any other property in respect of which the author dies intestate.”

RULING BY THE CHAIR

Bill C-11 amends the Copyright Act to update the rights and protections of copyright owners.

The amendment attempts to insert into the bill various rights of resale, including royalties, for the original author of a work.

As House of Commons Procedure and Practice (2nd Edition) states on page 766:

“An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill.”

In the opinion of the Chair, the introduction of resale rights for original authors of a work is a new concept that is beyond the scope of Bill C-11 and is therefore inadmissible.

By unanimous consent, Clauses 5 to 11 inclusive carried on division.

On Clause 12,

“telecommunication, except for

(a) a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a), if the person entitled to the equitable remuneration is entitled to the right referred to in those paragraphs for that communication; and

(b) any retransmission.”

After debate, the question was put on the amendment of Mike Lake and it was agreed to on division.

Clause 12, as amended, carried on division.

By unanimous consent, Clauses 13 to 17 inclusive carried on division.

At 3:50 p.m., by unanimous consent and pursuant to Standing Order 115(5), it was agreed that the Committee continue to sit.

On Clause 18,

“person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringe-”

After debate, the question was put on the amendment of Mike Lake and it was agreed to on division.

Clause 18, as amended, carried on division.

At 3:59 p.m., the sitting was suspended.

At 4:52 p.m., the sitting resumed.

By unanimous consent, Clauses 19 to 21 inclusive carried on division.

On Clause 22,

“(3) For greater certainty, subsection (1) does not apply in respect of any infringement of the moral rights described in sections 14.1 and 14.2.”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 4; NAYS: 7.

(a) replacing line 34 on page 18 with the following:

“(e) the reproduction is used only for the individual’s private”

(b) replacing line 1 on page 20 with the following:

“(f) the recording is used only for the individual’s private”

After debate, the question was put on the amendment of Mike Lake and it was agreed to on division.

“(e) the individual does not sell, distribute, rent out or give away the recording; and”

After debate, the question was put on the amendment of Geoff Regan and it was negatived, by a show of hands: YEAS: 1; NAYS: 7.

““broadcast” means any transmission of a program by telecommunication”

After debate, the question was put on the amendment of Geoff Regan and it was negatived, by a show of hands: YEAS: 1; NAYS: 7.

By unanimous consent, it was agreed, — That the result of the vote on the previous amendment be applied to the following two (2) amendments which are therefore also negatived:

“allows a person to receive works, performers' performances and sound recordings — or programs containing works, performers' performances and sound recordings — at times of”

That Bill C-11, in Clause 22, be amended by adding after line 17 on page 20 the following:

““program” means sounds or visual images, or a combination of sounds and visual images, containing more than one work or other subject-matter.”

At 5:15 p.m., the sitting was suspended.

At 5:17 p.m., the sitting resumed.

“(d) the person does not sell, distribute, rent out or give away the reproduction.”

After debate, the question was put on the amendment of Geoff Regan and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

“(4) For greater certainty, in the case of a broadcasting undertaking, the exemption from copyright infringement provided by subsection (1) is subject to the requirement to destroy a reproduction set out in subsection 30.9(4).”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Clause 22, as amended, carried on division.

By unanimous consent, Clauses 23 to 26 inclusive carried on division.

On Clause 27,

“convenient time.”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

“(a) destroy any publicly available fixation of the lesson within a reasonable time after the conclusion of the course to which the lesson relates;”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Clause 27 carried on division.

Clause 28 carried on division.

On Clause 29,

“notifies the person who has requested it that they may not

(a) make any reproduction of the digital copy, including any paper copies, other than printing one copy of it; or

(b) communicate the digital copy to any other person.”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

(a) by deleting, in the English version, lines 39 to 41 on page 31.

(b) by replacing, in the French version, lines 34 to 38 on page 31 with the following:

“reproduire, sauf pour une seule impression, ou de la communiquer à une autre personne.”

After debate, the question was put on the amendment of Geoff Regan and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Clause 29 carried on division.

Clause 30 carried on division.

On Clause 31,

(a) replacing line 16 on page 33 with the following:

“30.61 (1) It is not an infringement of copyright”

(b) replacing lines 21 to 24 on page 33 with the following:

“reproduce the copy if

(a) they reproduce the copy for the sole purpose of obtaining information that would allow the person to make the program and another computer program interoperable; and

(b) they do not use or disclose that information, except as necessary to make the program and another computer program interoperable or to assess that interoperability.

(2) In the case where that information is used or disclosed as necessary to make another computer program interoperable with the program, subsection (1) applies even if the other computer program incorporates the information and is then sold, rented or otherwise distributed.”

(c) replacing line 25 on page 33 with the following:

“30.62 (1) Subject to subsections (2) and (3), it is not an infringement of copyright”

(d) adding after line 34 on page 33 the following:

“(2) Subsection (1) does not apply if the person uses or discloses information obtained through the research to commit an act that is an offence under the Criminal Code.

(3) Subsection (1) applies with respect to a computer program only if, in the event that the research reveals a vulnerability or a security flaw in the program and the person intends to make the vulnerability or security flaw public, the person gives adequate notice of the vulnerability or security flaw and of their intention to the owner of copyright in the program. However, the person need not give that adequate notice if, in the circumstances, the public interest in having the vulnerability or security flaw made public without adequate notice outweighs the owner’s interest in receiving that notice.”

(e) replacing line 35 on page 33 with the following:

“30.63 (1) Subject to subsections (2) and (3), it is not an infringement of copyright”

(f) adding after line 3 on page 34 the following:

“(2) Subsection (1) does not apply if the person uses or discloses information obtained through the assessment or correction to commit an act that is an offence under the Criminal Code.

(3) Subsection (1) applies with respect to a computer program only if, in the event that the assessment or correction reveals a vulnerability or a security flaw in the program and the person intends to make the vulnerability or security flaw public, the person gives adequate notice of the vulnerability or security flaw and of their intention to the owner of copyright in the program. However, the person need not give that adequate notice if, in the circumstances, the public interest in having the vulnerability or security flaw made public without adequate notice outweighs the owner’s interest in receiving that notice.”

After debate, the question was put on the amendment of Peter Braid and it was agreed to, by a show of hands: YEAS: 8; NAYS: 4.

Clause 31, as amended, carried on division.

By unanimous consent, Clauses 32 and 33 carried on division.

On Clause 34,

“(4) Unless the copyright owner authorizes a reproduction to be retained, the broadcasting undertaking must destroy all reproductions on the earliest of

(a) the day on which it ceases to possess the sound recording or performer’s performance or work embodied in the sound recording,

(b) the day on which its licence to use the sound recording, performer’s performance or work expires, and

(c) the day that is 30 days after the day on which the original reproduction was made.

(4.1) A broadcasting undertaking that has, in accordance with subsection (1), made a reproduction of a sound recording, or of a performer’s performance or work that is embodied in the sound recording, may not make any further reproductions of that recording, performance or work without the specific authorization of the copyright owner.”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 4; NAYS: 7.

“tained and may not subsequently reproduce the same sound recording, or performer’s performance or work embodied in the sound recording, unless the copyright owner authorizes further reproductions to be made.”

After debate, the question was put on the amendment of Geoff Regan and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

The question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 4; NAYS: 7.

Clause 34 carried on division.

On Clause 35,

“copyright in that work or other subject-matter or contravene any other provision of this Act.”

At 6:26 p.m., the sitting was suspended.

At 6:28, p.m., the sitting resumed.

Debate arose thereon.

At 6:33 p.m., the Committee adjourned to the call of the Chair.