HERI Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Thursday, June 13, 2002

¿

0915

The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.))

Ms. Christiane Gagnon (Québec, BQ)

The Chair

Ms. Christiane Gagnon

The Chair

Mr. Abbott

The Chair

¿

0925

Mr. Finlay

The Chair

Mr. John Finlay

The Chair

Mr. John Finlay

Mr. Jim Abbott

Mr. John Finlay

The Chair

Mr. John Harvard

The Chair

The Chair

Ms. Wendy Lill (Dartmouth, NDP)

The Chair

The Clerk of the Committee

The Chair

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC)

The Chair

Ms. Sarmite Bulte (Parkdale—High Park, Lib.)

The Chair

Mr. John Harvard

The Chair

Mr. Abbott

¿

0950

The Chair

Mr. Abbott

The Chair

Ms. Christiane Gagnon

The Chair

Ms. Sarmite Bulte

The Chair

Mr. Mills (Toronto—Danforth)

The Chair

¿

0955

Mr. Abbott

The Chair

Mr. Abbott

The Chair

Ms. Christiane Gagnon

The Chair

Ms. Sarmite Bulte

The Chair

Ms. Christiane Gagnon

The Chair

Ms. Christiane Gagnon

The Chair

Ms. Christiane Gagnon

The Chair

Ms. Christiane Gagnon

À

1000

The Chair

Mr. Bruce Stockfish (Director General, Department of Canadian Heritage)

Mr. Jeff Richstone (Legal Counsel, Department of Canadian Heritage)

The Chair

Mr. Jeff Richstone

The Chair

Mr. Dennis Mills

Mr. Jeff Richstone

Mr. Dennis Mills

Mr. Jeff Richstone

Mr. Dennis Mills

Mr. Jeff Richstone

Mr. Dennis Mills

Mr. Jeff Richstone

Mr. Dennis Mills

Mr. Jeff Richstone

Mr. Dennis Mills

À

1005

Mr. Jeff Richstone

Mr. Dennis Mills

Mr. Jeff Richstone

Mr. Dennis Mills

Mr. Jeff Richstone

Mr. Jim Abbott

The Chair

Mr. Bruce Stockfish

Mr. Jim Abbott

Mr. Bruce Stockfish

À

1010

Mr. Jeff Richstone

The Chair

Mr. Dennis Mills

Mr. Bruce Stockfish

Mr. Dennis Mills

Mr. Bruce Stockfish

Mr. Dennis Mills

Mr. Bruce Stockfish

Mr. Mills (Toronto—Danforth)

À

1015

Mr. Bruce Stockfish

Mr. Mills (Toronto—Danforth)

Mr. Bruce Stockfish

The Chair

Mr. Peter MacKay

Mr. Jeff Richstone

Mr. Peter MacKay

Mr. Jeff Richstone

Mr. Peter MacKay

Mr. Jeff Richstone

Mr. Bruce Stockfish

Mr. Abbott

À

1020

The Chair

Mr. Bruce Stockfish

The Chair

Mr. Mills (Toronto—Danforth)

Ms. Michèle Gervais (Director, Intellectual Property Policy, Department of Industry)

Mr. Mills (Toronto—Danforth)

Ms. Michèle Gervais

Mr. Mills (Toronto—Danforth)

The Chair

Mr. Bruce Stockfish

À

1025

The Chair

Mr. Mills (Toronto—Danforth)

Mr. Bruce Stockfish

The Chair

À

1030

Ms. Christiane Gagnon

Mrs. Anna Marie Labelle (Senior Counsel, Intellectual Property Law Group, Department of Industry)

Ms. Christiane Gagnon

Mr. Jeff Richstone

The Chair

Mr. John Harvard

The Chair

---

CANADA

Standing Committee on Canadian Heritage

---

NUMBER 074

l

1st SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, June 13, 2002

[Recorded by Electronic Apparatus]

¿  (0915)  

[English]

    The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I'd like to call to order the meeting of the Standing Committee on Canadian Heritage, which is meeting today to consider, clause by clause, Bill C-48, an act to amend the Copyright Act.

[Translation]

    Ms. Christiane Gagnon (Québec, BQ): Mr. Chairman, a draft of the letter has been distributed, but in English only. The letter comes from the Canadian embassy.

    The Chair: Distributing the letter was clearly a mistake. The committee rules are quite clear and the Canadian embassy will be advised accordingly. Naturally, embassy officials wrote to the Americans in English, but arrangements should have been made to the have the letter translated. It should never have been circulated this way.

    Ms. Christiane Gagnon: Thank you, Mr. Chairman.

[English]

    The Chair: Merci.

    We have with us officials from the Department of Canadian Heritage: Mr. Bruce Stockfish, director general of copyright policy;

[Translation]

    Mr. Denis Gratton, Manager, Copyright Policy;

[English]

Mr. Michael Himsl, senior policy analyst; and Mr. Jeff Richstone, legal counsel.

[Translation]

    From Industry Canada, Ms. Michèle Gervais, Director, Intellectual Property Policy;

[English]

Mr. Bruce Couchman, senior legal analyst, intellectual property policy;

[Translation]

    and Ms. Anna Marie Labelle, Senior Counsel, Intellectual Property Law Group.

[English]

    So we'll now proceed.

    Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance): On a point of information, Mr. Chairman, I presume we require quorum.

    The Chair: Yes, we do require quorum. We'll just wait. The members are coming in now.

  (0917)  

---

  (0920)  

    The Chair: Members, please turn to the text of Bill C-48. There's a very important item of procedure here that will have to be clearly understood by all. I'll have to be guided by how you want to proceed.

    (On clause 2)

     The Chair: If you turn to clause 2 of the bill, amendment CA-1 by Mr. Abbott redefines the definition of retransmitter. That amendment cannot be moved. Normally it would be the first amendment to be moved.

    Government amendment G-1 on the same clause would come after Mr. Abbott's amendment. It would modify proposed paragraph 31(1)(b) and one line in proposed paragraph 31(1)(a). Is that clear?

    Normally we would proceed with Mr. Abbott's CA-1 and then move on to G-1. We cannot proceed with Mr. Abbott's amendment on retransmitter because you can't redefine a definition unless the substance of a clause it refers to has been adopted beforehand. In other words, for Mr. Abbott's CA-1 to be moved, we would need to have adopted CA-3, which says:

(d) in the case of the retransmission of a distant signal, the retransmitter has paid any royalties, and complied with any terms and conditions, fixed under this Act.

    If this one is moved and adopted, then we can move CA-1 and adopt it or reject it.

    CA-1 introduces a new notion in the last line, which says, “does not include a new media retransmitter”. If you will look at Mr. Abbott's CA-2, it defines new media retransmitter. So there's a sequence we will have to work on.

    Had we been able to move CA-1 first, we would have started with CA-1 and G-1 and then gone on to CA-2 and CA-3. But the only way we can work Mr. Abbott's motions is to start with CA-3, move on to CA-1, and then CA-2. Because we can't move on to Mr. Abbott's CA-1 first, that means, according to the precedence of the procedure, we will have to consider G-1 first.

    If G-1 is adopted--and I think people should be clear on that--CA-1 and CA-2 cannot be moved. If CA-1 is adopted, G-1 cannot be moved and falls away.

    Is that clear? Are there any questions? We'll have to make a decision as to how we deal with this and the members will have to decide.

¿  (0925)  

    Mr. John Finlay (Oxford, Lib.): I need a little clarification. When I read CA-1 and read what I think is in the bill in subclause 2(1) in the second-last definition on the page, it says exactly what this CA-1 says. So I don't know what we're amending.

    The Chair: Could you say that again, Mr. Finlay?

    Mr. John Finlay: Well, Mr. Chairman, in my bill, the first page, “An Act to Amend the Copyright Act”, the second-last definition is the one we're talking about, I believe, “retransmitter”.

    The Chair: Could you qualify where you're talking about?

    Mr. John Harvard (Charleswood--St. James--Assiniboia, Lib.): The second-last paragraph.

    Mr. John Finlay: I don't have any lines on this, Mr. Chairman, so I can't tell you what line it is, unfortunately.

    Mr. John Harvard: I don't have any lines on mine either.

    The Chair: Go get another bill.

    Mr. John Finlay: We are looking at the bill.

    Mr. Jim Abbott: Well, if you look in the centre, you'll see numbers 15, 20, 25, and 30.

    Mr. John Finlay: No, I don't. There are no numbers 15, 20, and 25.

    The Chair: We want to stay with you because we want to make sure we have it right.

[Translation]

    One moment, please. We'll let Mr. Finlay finish.

[English]

    Mr. John Harvard: There are two different versions of the bill, or at least.... What we have, Mr. Finlay and I, have no numbers on them.

    The Chair: Christine, could we all have the same copy of the bill? Is this one the final version of the bill?

    Excuse me a minute, please. This is a really important issue. We want to be talking about exactly the same provisions in exactly the same document. We're going to get extra copies of the bill so that people are dealing with the same version. This will take about five minutes.

    We'll suspend for five minutes, and as soon as the bill is here we'll look at it.

  (0930)  

---

  (0945)  

    The Chair: We'll now resume the meeting on Bill C-48.

    Before we do, before I accept any intervention, I would like all members to be sure that what they have before them is a copy of Bill C-48 with the number 90174 at the bottom. That is the proper version.

    Ms. Lill has made the point that she never received the amendments until now. I would like the clerk to tell us.... If you recall, the last session of this committee we had on discussions about amendments was on Tuesday. We decided not to have a meeting before Thursday morning to allow people to get the amendments and be able to study them, which was the motive for delaying the meeting for two days. I would like to find out exactly what happened. You say, Ms. Lill, that you never got the amendments until this morning?

    Ms. Wendy Lill (Dartmouth, NDP): To clarify, I have to say that this is the first time I've seen the CA amendments. We did attempt to get the CA amendments and were not able to, so this is the first time I have seen them.

    The Chair: Ms. Fisher, when did the CA amendments get to us, and when were they distributed?

    The Clerk of the Committee: The government amendment and the Bloc amendment were distributed by messenger by hand to members yesterday. At that time the CA amendments were still being redrafted, so they weren't available to be distributed. I just saw them this morning myself.

    The Chair: Well, if amendments have just been received this morning, I think there's a fair case for saying that there is no way members can really take advice of them, study them, and be able to make judgments on them. That is very much against the members' privileges. They have to have a chance to study amendments and decide, each party in its own way, how they're going to deal with them.

    In the circumstances, I don't know whether Ms. Lill or anyone objects to this meeting taking place on this basis. Do you want to come back later, or do you want to postpone it altogether? I'm open.

    Mr. MacKay.

    Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Mr. Chair, you've made the point, and at the same time I recognize we have the officials here from the department. I wonder if we might consider hearing from the officials and having a general discussion on the amendments, and postponing any clause-by-clause.

    Being the fair and judicious chair I know you are, you recognize that having just received these amendments, and echoing Ms. Lill's sentiment that this is important.... The decisions that will be made today, obviously, are going to change the very impact of this legislation. I'm not comfortable with proceeding with a vote at this time, so I would request that the chair consider postponing the clause-by-clause. But because we have our officials here, if it's acceptable to the members, it might be fair to hear from them.

    The Chair: Ms. Bulte.

    Ms. Sarmite Bulte (Parkdale—High Park, Lib.): Mr. Chairman, I would strongly recommend that we not rush into this, that we do it properly, and that we have time to study the amendments as well. I concur completely with Ms. Lill, and I would propose that we come back later this afternoon.

    An hon. member: I would second that.

    The Chair: Mr. Harvard.

    Mr. John Harvard: I partly agree with Ms. Bulte but not completely. Peter's suggestion is really in reverse order. We should look at the amendment, think about it, and then hear from the officials.

    This afternoon is out, I'm sorry. I understand the House will be sitting next week, so as far as I'm concerned, this meeting should be adjourned until Tuesday.

    The Chair: Mr. Abbott.

    Mr. Jim Abbott: Mr. Chairman, I think it's very important to put on the record what has happened here. We're now in the situation where the heritage minister made a very kind commitment to a convention of the CAB and to other interested parties that this amendment was going to be coming forward. To the best of my recollection, I believe you and I were involved in the panel at that convention. It was some time last fall.

    What has occurred in the interim is that there has been complete confusion. There has been reported division between the Department of Industry and the Department of Heritage, and as a consequence we ended up with a document coming under the name of the heritage minister and under the name of the industry minister, a document basically saying, how would you like to basically sublet the policy-making that is the responsibility of members of Parliament and go ahead and pass Bill C-48 as presently written?

    We have been asked by the department officials to be involved in the drafting of regulations. They, as experts, have found it impossible to draft these regulations and so they're asking this committee to draft them. So first we're being asked to sign a blank cheque by going ahead and passing Bill C-48 as it presently sits. Secondly, we're being asked to fill in for the position of regulation drafting.

    This bill, Bill C-48--

¿  (0950)  

    The Chair: Excuse me, Mr. Abbott, I would like to interrupt now.

    I know this is very interesting, and we've been through this mill before, but what we want to discuss right now is whether we should postpone the meeting, and until when, because the amendments were not in the hands of the members in time. That's really what it is.

    Mr. Jim Abbott: Let me deal with that issue directly and specifically. There is a cabinet meeting next Tuesday morning. If this bill is not handled by the committee between now, Thursday morning, and next Tuesday morning, it can't be reported back to the cabinet to determine whether they're going to be bringing it forward to the House of Commons.

    If they do not make that decision on Tuesday, this is not going to happen, in which case we're going to end up with a situation of the industry, the copyright holders, the broadcasters, the rights holders, basically being left naked over the recess of the Parliament against this.

    So I don't know what the situation is here, but--and I say this with the greatest respect--it is a very unhelpful situation that we have arrived now, a matter of many months after this should have been resolved, at a situation where the rights holders are basically being left naked for the summer. I find it very regrettable.

    The Chair: I know, but the fact is the amendments were not in place at the time for discussion.

    Madame Gagnon.

[Translation]

    Ms. Christiane Gagnon: I'm a bit disappointed that Ms. Lill from the NDP had to leave, because we're debating whether or not to postpone the meeting and until when. Certain things need to be said. She was disappointed this morning and she's not here now to listen to what we have to say. It won't be easy for me to stay this afternoon and I would have liked to know if and when she might be available. I'd like the committee to meet sometime next week, because we may run the risk of not being able to adopt the bill before the summer recess. Internet providers are dealing with the situation first hand and there are no safeguards in place as far as copyright is concerned.

[English]

    The Chair: Ms. Bulte.

    Ms. Sarmite Bulte: Thank you, Mr. Chairman.

    Again, I think it's important that we bear in mind that we're just seeing these amendments this morning, and we're trying to work with all members of the committee to ensure that the right amendments are made.

    Mr. Abbott, with all due respect, we are happy to entertain and to listen to your amendments. I think you heard the chair indicate it's definitely not the government's position that we just want Bill C-48 to proceed to be passed the way it is. Bearing that in mind, we're trying to work with all members of this committee, as we all have, to look at your amendments and to look at Madame Gagnon's amendments. So we're really trying to make an effort here.

    With respect to your knowledge about cabinet meetings, you have more knowledge than I have, because to the best of my knowledge, the cabinet meeting for Tuesday has been cancelled. So I have to laugh that you seem to have more information than we do about when our cabinet meetings are held.

    I would like to propose also, following up on what Madame Gagnon said, that we do look at our calendars and perhaps--and I understand maybe not this afternoon but perhaps Monday afternoon--we find some time when we can do this.

    The Chair: I was going to suggest to members that we make a special effort to meet Monday afternoon, in view of the importance of this legislation and leaving this vacuum in the law.

    Mr. Mills.

    Mr. Dennis Mills (Toronto—Danforth, Lib.): In response to that, I personally have no problem. But before we have a snap adjournment here, while the officials are in front of us, I would really like them to explain this government amendment and the way they see it. I want to make sure I understand it correctly. If this government amendment is essentially maintaining the status quo, where we're going to take the next year and they're going to go away and contemplate what the regulations might be, could be, will be, whatever, I need to know that.

    The Chair: I understand that.

    Before we proceed, we can still hear from the officials about the amendment. What I would like to do first of all is find out if there's a consensus for a meeting on Monday and if we could say that the amendments are received now and there are no more amendments to come. I would like to get the feeling that there are no more amendments, that these are the amendments. The amendments have now been circulated, they will be studied, and we can meet on Monday afternoon.

¿  (0955)  

    Mr. Jim Abbott: Just for clarity on that, Mr. Chairman, what happens if it would be desirable, in the opinion of the committee, to move a subamendment to the amendment?

    The Chair: You can do that. What I would say is let's put a deadline of Friday afternoon so that members have time to receive these amendments and be in a position on Monday to have studied them. So before the weekend, they'll be in their hands. Could we say by Friday noon?

    Mr. Jim Abbott: One thing I absolutely want to put on the record is the fact that the Canadian Alliance amendments were in the hands of the committee members who were in committee on Tuesday of this week, though not in the form they are presently in. They have gone to legislative counsel and they have been reworked into the proper form. But to the best of our ability, those CA amendments, with their full intent, were in the hands of the people on Tuesday of this week. With the greatest respect to Mrs. Lill, I think if she or other NDP members had attended that committee meeting and others, she might have been better informed for today.

    The Chair: Madame Gagnon.

[Translation]

    Ms. Christiane Gagnon: I concur fully with Mr. Abbott of the Alliance. I followed the work of the committee and was aware that there would be amendments. I made some telephone calls and tried to obtain the revised version. I took the initiative of doing so because I wanted to prepare myself for this morning's meeting. I'm ready, but Ms. Lill isn't here to get the information. If ever there was a delay on Friday owing to the sub-amendments, I hope that she'll be notified personally by phone. That would mean a further delay in the vote on Bill C-48.

    I'm very disappointed this morning because I was ready to proceed with the clause-by-clause study.

[English]

    The Chair: Okay.

    Ms. Sarmite Bulte: If I may, Mr. Chair, I'd just like to respond to Mr. Abbott on the intent of his amendments.

    While that's absolutely correct, Mr. Abbott, I still see that it's also very important that we do get the exact language, because intent may be one thing, and to have the words put in and sentences deleted.... Again, we don't just want to make imperfect legislation. Please understand that while we know what your intent was, my concern is that one word can change the intent. You may have unintended consequences from certain things. So please bear with us.

    I would also like to propose, Mr. Chairman, that we be allowed to have subamendments so that if there is something on Monday when we come, we can make it right.

    The Chair: Could we then consider that somebody will move that subamendments or new amendments be produced by noon Friday, so they can be processed and everything and in the hands of members before the weekend? Can we also move that we meet Monday afternoon at 3:30 for clause-by-clause?

    Pardon, Madame Gagnon.

[Translation]

    Ms. Christiane Gagnon: I get back on Monday. I have a schedule and commitments quite apart from my committee work.

    The Chair: Try and make it back in time, Ms. Gagnon.

    Ms. Christiane Gagnon: You're asking me to go above and beyond the call.

    The Chair: I realize that, but the effort would be greatly appreciated.

    Ms. Christiane Gagnon: When a challenge an action, I stay right until the end to see how everything turns out. It's the least I can do. So then, the meeting is being postponed until Monday. Is Monday good for her? Did anyone check to see if it was convenient? Perhaps it's not good for her.

    The Chair: If it's not convenient for her, she won't come.

    Ms. Christiane Gagnon: I'm trying to respect everyone's wishes.

À  (1000)  

    The Chair: She'll have to go along with whatever the group decides.

[English]

    Do members now want to have a briefing from the officials about their amendments, while they are here? Is that what you wish? All right.

    Mr. Stockfish, perhaps you could speak about the amendment and explain to us what the intent of it is.

    Mr. Bruce Stockfish (Director General, Department of Canadian Heritage): Thank you, Mr. Lincoln. I will ask Mr. Richstone to address the government amendment.

    Mr. Jeff Richstone (Legal Counsel, Department of Canadian Heritage): Thank you, Mr. Chair.

    The Chair: We were talking about G-1.

    Mr. Jeff Richstone: The intent of G-1 was to clarify what was already in the text. There were concerns raised by a number of committee members and witnesses that the way paragraph (b) in the retransmitter definition on page 1 reads, lines 25 to 27, those three lines, it wasn't clear that if there were no qualifying conditions, someone could nevertheless qualify as a retransmitter under paragraph (b).

    The view of the government was that you needed regulations to qualify such people; otherwise they would not be admissible to avail themselves of the compulsory licence. I think that was a key point of the testimony of many government witnesses, Mr. Warnock, Mr. Stockfish, and Ms. Gervais. You needed regulations for retransmitters under paragraph (b).

    So the intent of government amendment G-1 is to make that clear. You see the words underlined in the English text “if there are” qualifying conditions “prescribed...” a person who retransmits a signal and meets “those” conditions.

    So it makes it quite clear in the English version that you have to have a qualifying condition prescribed. “Prescribed” means a regulation. No regulation, nobody qualifies under that paragraph. I think it's quite clear in the English text.

[Translation]

    The French text says exactly the same thing, Mr. Chairman, specifically: “toute personne qui, à la fois...” It's critical to include both of these components. The person must retransmit a signal and meet the qualifying conditions. Both of these conditions must be met in order for a person to qualify under paragraph (b) of the definition.

[English]

    Members will remember that paragraph (b) of the definitions covers retransmitters who are not presently either licensed under the CRTC right now or do not benefit from an exemption order that forces them, obliges them, to carry at least one signal, the must carry rules.

    So those are some of the.... Among the class of retransmitters not covered by (a) would be these new media retransmitters, as the CRTC calls them, or retransmitters over the Internet. So that is the intent of the government motion.

    I hope that was clear.

    The Chair: Are there any questions? Mr. Mills.

    Mr. Dennis Mills: Mr. Richstone, you said no regulations, then no one qualifies.

    Mr. Jeff Richstone: Under paragraph (b), yes, sir.

    Mr. Dennis Mills: What regulations?

    Mr. Jeff Richstone: The regulations or qualifying conditions. If you'll turn to lines 26, 27, and 28 on page 2, you will see the Governor in Council may make regulations, and under paragraph (b) “prescribing qualifying conditions for the purposes of paragraph (b)”. In other words, you do not qualify as a retransmitter unless there are regulations qualifying you. You don't automatically enter--

    Mr. Dennis Mills: We have a new amendment, since our last meeting, but there are no further specifics on the regulations.

    Mr. Jeff Richstone: The intent of the government amendment was not to put specifics on the regulations, but to put specifics on the fact that it was conditional.

    Mr. Dennis Mills: So there's really no difference in this amendment from what we had last week. What is the difference between this amendment and--

    Mr. Jeff Richstone: You're referring to what was in Bill C-48 on first reading?

    Mr. Dennis Mills: Yes.

    Mr. Jeff Richstone: The difference is, it makes clear something a number of witnesses who came before the committee said was not clear to them. A number of witnesses came before this committee and said it wasn't clear to them that someone would qualify without having regulations. There was a fear that people would qualify even if the government waited a year--whatever--and did not pass these qualifying regulations, that they would get in.

    Mr. Dennis Mills: This is the Susan Peacock point you're addressing.

À  (1005)  

    Mr. Jeff Richstone: Well, I wouldn't necessarily refer to one person here, but....

    Mr. Dennis Mills: I want to be very clear; it's because I thought she made the most compelling case for this.

    Mr. Jeff Richstone: Well, if Madam Peacock doesn't mind, I think she was one of the people who mentioned that point. Yes, that was the point raised by her. Maybe there are other witnesses as well, sir. I know that this was the concern--

    Mr. Dennis Mills: In your judgment, this amendment addresses that clarity we were concerned about.

    Mr. Jeff Richstone: The Department of Justice has been asked by the government to redraft it to meet that concern. Yes, that is the belief. It is quite clear, we think, in both language versions.

    Mr. Jim Abbott: I'm curious about something, the point I was making earlier, that you have had a period of time in which to try to come up with a definition of “new media retransmitter”. Basically, as I've stated before, I object quite forcefully to the idea that people who are supposed to be involved in making policy will be subletting that policy-making to officials in regulations. That is the primary thing that's sticking in my craw.

    Now, what I don't understand is, what's going to change? In other words, with this amendment you're proposing, we would have a situation where these euphemistically called “new media retransmitters” would be restrained for the period of time needed for us to come up with the regulatory language that defines them. Well, what's going to change in the next 12 months that we're going to be able to come up with that wording? Why can't we have that wording today so the wording is in legislation and so the policy-makers have a chance to make policy?

    The Chair: Mr. Stockfish.

    Mr. Bruce Stockfish: Thank you, Mr. Chairman.

    Mr. Abbott, this is the point Mr. Wernick attempted to address when officials first appeared before you. The effect of Bill C-48, in particular the definition of “retransmitter”, is not to give a blank cheque to the regulation-making process. It is to confirm that existing retransmitters are covered, namely cable and satellite, those that are licensed and subject to a mandatory carriage exemption order. That's in paragraph 2(1)(a), the definition of “retransmitter”. What paragraph 2(1)(b) does--yes, it's true--is to allow for new retransmitters, new technology retransmitters, to be covered by regulation.

    The reason the government took the decision to allow for new retransmitters to be covered by regulation was the changing technology and the need for flexibility to adapt. As new technologies came along, we wanted to ensure that we did not have to come back through the legislative process each time to make an amendment to the statute.

    Given the concerns that have been raised with regard to the regulations we've tried to develop and the consultation document on proposed regulations we've been working on, the government has indicated its intention to come back to this committee to allow it to review the regulations before they are actually made.

    Of course, the regulations are subject to the ordinary parameters of due process and consultation. Stakeholders will continue to have an opportunity to act through the formal consultation process for regulations, and of course we'll continue to work with stakeholders in developing those regulations as well.

    Mr. Jim Abbott: Mr. Stockfish, I want to go out of my way to be absolutely polite here. With the greatest respect, I must tell you that both of those answers walked around my question.

    My question is, if we are going to have a definition of a “new media retransmitter” 12 months from now, why is it going to take 12 months to arrive there? Why can't we, the policy-makers, not be given that definition for our consideration so we can clearly make policy? That is our job, and that was why the people of Kootenay--Columbia elected me and why the rest of the people in this room were elected in their respective constituencies.

    Mr. Bruce Stockfish: I completely understand your point, Mr. Abbott. I think it really depends on what the definition for new media retransmitter will be. Frankly, the government has struggled with that. That's one of the reasons we wanted to allow the flexibility for the regulations.

    If we allow for basically two approaches in that definition, one would be to refer to the Internet in the statute, and that has caused enormous definitional issues for a number of stakeholders and for ourselves. Again, if it's in the regulations, we could allow for ourselves to respond to the Internet or other new technologies in a more flexible way.

    Secondly, if instead we refer to the new media exemption order of the CRTC, as some have suggested, that causes problems from a legislative process point of view in terms of what a statute can refer to in the statute. In fact, it's more appropriate for orders, statutory instruments, to refer to the regulations.

    I don't know if Mr. Richstone wants to elaborate on that, on the question of a reference to a statutory instrument in the statute. This is a matter for the Department of Justice.

À  (1010)  

    Mr. Jeff Richstone: If I may, Mr. Chair, on the amendment, if you refer to an order of the CRTC and a definition of the CRTC, that can be changed. Quite frankly, is there any difference? Is it better to refer to a definition made by an independent body, which is quasi-judicial, which is not before this committee, which can change from time to time and can change policy substantially? Is it better to do that than to put an amendment and have it subject to regulations and parliamentary scrutiny within x number of months' time?

    It seems to me, quite frankly, Mr. Abbott, if you refer to a quasi-judicial body, which has complete authority and independence to change their definition, not subject to parliamentary scrutiny, Parliament is surrendering a bit of its authority in a way that it may not like. Often, I would say, in the Department of Justice we shy away from a statute adopting a definition of another body, which can be amended from time to time, when we're not sure and we cannot come to Parliament and say the change would be acceptable to the government or to Parliament. There is a step you take there that is risky, to say the least.

    The Chair: Are there any other questions of the officials?

    Mr. Mills.

    Mr. Dennis Mills: Thank you, Mr. Chair.

    All the stakeholders, with the exception of...well, actually even iCraveTV, everyone, said they want to be in a position that they negotiate their properties, their products, directly. They don't want to have the Copyright Board do the evaluation of their product. How do we achieve that?

    Mr. Bruce Stockfish: The short answer, Mr. Mills, is to repeal section 31, which provides for a compulsory licence. As we've indicated on a number of occasions, though, it is government policy--broadcast as well as copyright policy--to allow for a compulsory licence to sustain the retransmission system, an essential element of the broadcasting system. Of course, here we're talking about cable and satellite, in addition to any other form of technology that can be used now or could be used in the future for purposes of retransmission.

    Mr. Dennis Mills: So in your mind, you don't want to have a two-tier system. You want to lump in the Internet retransmission with the existing system. Is that essentially your position?

    Mr. Bruce Stockfish: I would agree with that. One of the guiding principles that we put in our consultation document when we went to the public to consult on this issue was that we should attempt to be as technologically neutral as possible.

    Obviously the Internet raises unique concerns. We recognize that.

    Mr. Dennis Mills: If it does raise unique concerns from cable and satellite, why wouldn't you listen to the near unanimous position of the stakeholders that said because of this unique situation, they want to have a capacity to negotiate directly rather than subcontract their property to the Copyright Board so that they would then evaluate?

    Mr. Bruce Stockfish: I think most stakeholders would acknowledge that the compulsory licence is an essential feature of the broadcast system. The question is whether we should extend the benefits of the compulsory licence to the Internet. Certainly that's the position of rights holders. They would prefer to have the ability to negotiate their rights on a case-by-case basis.

    Certainly we've listened to all stakeholders, though, and again, it's a question of trying to address the balance that is inherent in copyright in this particular issue regarding retransmission. I think not all stakeholders would agree with you that--

    Mr. Dennis Mills: Who wouldn't?

À  (1015)  

    Mr. Bruce Stockfish: Certainly the existing retransmitters. Cable, DTH, I'm sure if they came before you would argue for the benefit of the compulsory licence in order to be able to continue to rebroadcast over-the-air signals.

    Mr. Dennis Mills: So you're saying that they would feel that the uniqueness of the Internet retransmitter doesn't qualify for a separate approach.

    Mr. Bruce Stockfish: They're concerned that what we do will not prejudice their own ability to operate. They have indicated to us further that they want to ensure that the door is left open for them to avail themselves of future technology in order to continue to retransmit in the most efficient manner possible.

    Mr. Dennis Mills: Thank you.

    The Chair: Mr. MacKay.

    Mr. Peter MacKay: Thank you, Mr. Chair.

    Mr. Stockfish, are we not simply forfeiting then as a committee the ability to make the law, to make the regulations? We're putting that off. Essentially, what is happening here is you're saying we should leave the door open. By leaving the door open to retransmission, my concern is--and I'm not picking on JumpTV--there is potential for abuses here; there's potential for pirating; there's potential for the loss on the part of the stakeholders of the ability to control their intellectual property. Essentially, what this amendment does is it says we'll deal with that later.

    The Chair: Mr. Richstone.

    Mr. Jeff Richstone: If I may make it clear,Mr. Chair, it doesn't leave the door open; it closes the door, quite frankly. I'm talking about G-1. I'm back to G-1. It closes the door, Mr. MacKay, because it says “if there are qualifying conditions”. If there are no qualifying conditions, the door is closed. The door is open when there are qualifying conditions. The door closes if there aren't any. Until there are qualifying conditions, the door is closed, so it doesn't open that.

    Mr. Peter MacKay: But shouldn't we be making those conditions clear now?

    Mr. Jeff Richstone: I think the sense from a lot of people, and the witnesses and the government, is that we need time to clear.... It's not so much the qualifying conditions that are important. It's the qualifying conditions and the bulk of the other conditions that may be applicable to that class and other classes of retransmitters.

    The government came to the committee the first time and said it needed some time because there was a CRTC process, etc., and until all those different processes wend their way, the intent of G-1 is to close the door. After those processes wend their way--the CRTC inquiry and all that--and you have a more complete picture, then the government intends to come before the committee with a package of draft proposals. At that point the door can be open in the sense of the government proposals. But I really have--

    Mr. Peter MacKay: With the greatest respect, I disagree with you. I think the wolf is at the door here. You're essentially saying, “Trust us, we'll come back and deal with this”--at a time when the abuse may already be under way.

    Mr. Jeff Richstone: Mr. MacKay, you've closed the door. You've closed the door. Parliament and the government decides to open the door when the government and the committee looks at it. So the door is closed. I can understand that if there's a wolf at the door you want to close the door. I'm saying that unless you think the door isn't closed by this amendment, the door is closed to the wolf.

    Mr. Bruce Stockfish: If I may elaborate, I mentioned when we gave testimony last time that my view is that this bill should be perceived as a carve-out. It makes clear that only existing retransmitters will have benefit of the compulsory licence, paragraph 2(1)(a) in the definition of retransmitter. Paragraph 2(1)(b), which this G-1 amendment attempts to make very clear, only allows for new retransmitters, including Internet retransmitters, once regulations are made.

    The government has indicated its intention to make those regulations one year from now, but only after we've heard from the CRTC and what they may do with regard to imposing conditions, and after further consideration with stakeholders and with yourselves.

    The door would be left open, yes, but we would not go through it until we have gone through those very important steps.

    Mr. Jim Abbott: I would like to make a suggestion, and it's made in the most hopeful way that we can get around this problem. If we go ahead with Bill C-48, with the amendment as proposed by the government, the government amendment, we have created a temporary carve-out. What a lot of the people, the legislators at this table, find objectionable, as I've said, is that in turn, notwithstanding the letter from the two ministers, we're basically subletting our policy-making.

    I wonder if I could make a suggestion to the government, and perhaps the parliamentary secretary could carry it back to the minister. The letter that came to us under her signature and the signature of the industry minister basically commits the cabinet to a particular course of action. I wonder if those ministers and their departments would consider saying that if we go ahead with Bill C-48 and we achieve this temporary carve-out, the government would bring forward amendments to the legislation relative to what is found during this regulatory process.

    In other words, once again it comes back to the whole issue of determining the definition, which according to the officials, as I understand it, you require an additional 12 months to get through. So there's this temporary protection.

    At the end of the day, we would have a commitment by the ministers that the government would be prepared, however it can be properly worded, to come forward with amendments to the legislation that would enshrine what is discovered in this 12-month process.

    Is that clear, what I've suggested?

    A voice: Yes, but I can't make that commitment.

    Mr. Jim Abbott: No, I know you can't, but I'm just wondering if that isn't a way around the problem, where we basically create a cofferdam while we're building a proper dam. That's what I'm suggesting.

À  (1020)  

    The Chair: We're getting into completely uncharted waters. I would like to find out from the officials whether I understand Mr. Abbott's suggestion properly. The idea promoted or sent to us by the two ministers was that we adopt Bill C-48, conditional on the regulations being submitted to the committee for examination and recommendations to the government. What Mr. Abbott is saying is that once we start looking at these regulations, if in the regulations there would be a definition of a new media transmitter, we will enshrine this in the legislation itself by direct amendment. Is that what you're saying?

    Mr. Jim Abbott: That's correct.

    The Chair: I just wanted to understand that properly. So at the time we deal with the regulations in committee, we would pass an amendment to the law enshrining the new definition of a new media transmitter.

    Is there any comment? Mr. Stockfish.

    Mr. Bruce Stockfish: Very briefly, it certainly can be done. There are good policy reasons for not doing it, which we tried to articulate, but we would have to seek further instruction, obviously, before pursuing that track.

    The Chair: Okay.

    Mr. Dennis Mills: I guess really, Mr. Stockfish, where you and I come apart is over this uniqueness of the Internet. You want to lump the Internet in with what we've done today and I want to treat it as a unique situation. Is that essentially it?

    Ms. Michèle Gervais (Director, Intellectual Property Policy, Department of Industry): The answer I would provide to you, sir, is that we agree that the Internet has some specificities that are different from existing retransmitters, from a technological point of view. I think the policy document that was provided to you when we first appeared before you shows that we clearly intend to provide for conditions that would ensure that the retransmission would not go outside of Canada. Therefore, I believe we are addressing your concerns through this policy document, which provides you with an indication of the policy the government proposes to take.

    Mr. Dennis Mills: Madame Gervais, that's really not the question I asked. I want to ask you the question. I've used Mr. Stockfish's language that the Internet is a very unique situation. The way I see this exercise coming at us is that essentially you want to lump this unique situation, the Internet, in with the cable and satellite system of evaluation.

    Ms. Michèle Gervais: Well, if you mean by “lumping” to provide all retransmitters the privilege of having access to the section 31 compulsory licence, the answer is yes, this is our intention.

    Mr. Dennis Mills: That's okay; you can say it. I just disagree.

    The Chair: Mr. Stockfish is next, and I think we'll close this part now. Okay, Mr. Stockfish.

    Mr. Bruce Stockfish: Just to extend the discussion, “lumped in”, in its broadest sense, is I think exactly where we're going. Of course, we're treating them differently because they are different. The proposed regulations we've been consulting on would set conditions that are for the Internet retransmissions only, because they pose problems that go beyond what cable retransmitters pose. We also have a provision in the consultation document on the draft regulations that would deal with satellite. Satellite poses problems that are different again from cable. There are no additional conditions we would propose for cable.

    The problems each technology poses are different, so we respond differently. We respond with a greater solution, if you will, for the Internet in order to level the playing field for them all. We're trying to allow for the same end result in terms of the protections for stakeholders, no matter which technology.

À  (1025)  

    The Chair: Excuse me a minute. Before Mr. MacKay leaves.... Are you going to be here on Monday, Mr. MacKay? If you're going to be here, I want to make quite clear that we've still not resolved the whole question of the procedure, so that members understand clearly that if the government amendments and all the amendments that have been presented to us stand the way they are by the time we get here on Monday, we can't deal with Mr. Abbott's amendment unless we tackle CA-3 first, and then the government's amendment comes first. If the government amendment comes first and is carried, Mr. Abbott's CA-1 and CA-2 will fall away. Conversely, if we decide to deal with Mr. Abbott's amendment first, by the decision of the committee, if CA-2 and CA-1 carry, then the government amendment will fall away.

    I just wanted to make quite clear that we still have to make that decision on Monday before we start clause-by-clause.

    Thank you very much.

    Mr. Mills.

    Mr. Dennis Mills: I just want to close with Mr. Stockfish. I want to make a couple of points, because I have immense respect for your experience as a senior official in the government. I recall your words “balance of interests” and I also recall--and I have your testimony when you've appeared in front of us--how you've had great difficulty over the last year in trying to define some regulations that work.

    Concerning “balance of interests”, we have a responsibility as well. I just can't get it through my head why we shouldn't respect those people in the motion picture industry. Pardon me for saying I have 5,000 people in my community who are employed in this sector. They decide whether I'm an MP or not.

    With small-market NHL teams, or CFL, or soccer, the notion, if I owned one of those properties, whether it be a motion picture or the rights to the Calgary Flames--or, the way things are going, the Montreal Canadiens--that I had to allow that property to be negotiated by the Copyright Board I find very tough to swallow. I don't see whom we're hurting, going back to “balance of interests”, by not respecting their point of view. I just don't know whom we're hurting.

    Mr. Bruce Stockfish: I'm in the copyright policy branch of the Department of Canadian Heritage, Mr. Mills. Our raison d'être is to protect and promote the rights of copyright holders. This is done in a manner that balances interests of users, of consumers.... We're all users of copyright, and in this particular sense we're all consumers of television signals, which the retransmission system facilitates.

    The concern you raise is a valid one, and I understand it. We would not be advocating this bill and this whole approach if it were not for the fact that, in our opinion, rights holders' interests will be protected in the regulations we intend to develop. This is the balanced approach that we've tried to articulate.

    The Chair: Okay, I think we should leave it there.

    In fairness to the officials who are here, they don't make policy. They are just asked to carry out the documentation and the text that reflects the policy that is made by the government. So I don't think we should really get them into an area where they reflect on the decisions made by the government.

[Translation]

    Do you have a question, Ms. Gagnon?

À  (1030)  

    Ms. Christiane Gagnon: I do. Let's suppose Internet providers were granted compulsory licences. In Quebec, the creator maintains a link with his work, whereas in English Canada, copyright provisions prevail. Will this not require greater vigilance on the part of Quebec creators than it will require of members of the English creative community? Apparently, the onus will be on the copyright holder to monitor the situation. This could be a costly proposition. If the creator maintains ties to his work, will this mean taking on more responsibilities in terms of ensuring compliance with copyright? This issue was raised by the SACD and by SOCAN.

    Mrs. Anna Marie Labelle (Senior Counsel, Intellectual Property Law Group, Department of Industry): You raised a similar question at the last meeting and I will repeat what my colleague said.

    The Copyright Act is framework legislation which applies everywhere in Canada. Its provisions apply the same way in Quebec as they do in other provinces. Some creators may take a different approach in Quebec, but the legislation applies in exactly the same way, regardless of where a creator lives. Therefore, there really is no difference between copyright and “droit d'auteur”.

    Ms. Christiane Gagnon: The approach, however, is different. I realize that legislation can safeguard our rights, but if, for example, from a social perspective, different approaches are taken in different parts of the country, in some cases, a greater monitoring effort may be required. That's the point I was trying to make.

    Mr. Jeff Richstone: As my colleague was saying, exactly the same system applies. Although practices associated with section 31 may vary from one part of the country to the next, the same copyright system applies, since in both cases, creators must go before he Copyright Board to collect royalties. Whether a creator is represented by a copyright collective or not, he still collects from the Board the royalties he or she is entitled to as the creator of the work. That process remains the same. Contractual terms may differ, but this doesn't change anything in terms of the royalties paid by the Board. You need not be concerned on this score.

[English]

    The Chair: Okay.

    Mr. Harvard.

    Mr. John Harvard: I just want to say, Mr. Chairman, that I've listened intently to the discussion from both sides this morning, and I think it's very possible that Mr. Abbott's amendment might be accepted. But having said that, I just want to say that I think Mr. Stockfish and Mr. Richstone have done a really good job of explaining the intent of the bill, the benefits of section 31, or copyright, and I don't find their answers confusing at all.

    What we're dealing with here is really a fundamental question. Do we bring these new retransmitters under section 31 or do we leave them out completely? And we're dealing with the very basic question. Everything else in a way is detail, including the regulation that might be dealt with.

    So I just want to thank you guys. I think you've done a very good job. We may well decide on this fundamental question and go with a complete carve-out, although I do agree that what you're proposing is tantamount to a carve-out. But for some people it still may not be enough.

    That's all. I just wanted to say that.

    The Chair: Mr. Harvard, I think you've explained it extremely well. That's my understanding of it as well.

    I think I would like to echo Mr. Harvard's words as far as the input of the officials is concerned. I think it's been excellent, and we really appreciate your patience. I know it's been difficult for you, but it's very difficult for all of us too.

    So thank you very, very much. We'll see you on Monday at 3:30 p.m.

    The meeting is adjourned.