Proceedings of the Standing Senate Committee on
Transport and
Communications
Issue 14 - Evidence for the afternoon sitting
OTTAWA, Tuesday, April 15, 1997
The Standing Senate Committee on Transport and Communications, to which was referred Bill C-32, to amend the Copyright Act, met this day at 3:30 p.m. to give consideration to the bill.
Senator Lise Bacon (Chair) in the Chair.
[English]
The Chair: Honourable senators, I wish to welcome representatives from the Writers' Union of Canada, the Periodical Writers Association of Canada, the Union des écrivains et écrivaines du Québec, the Canadian Copyright Licensing Agency, and the Educational Media Producers and Distributors Association.
[Translation]
We are pleased to welcome you to our committee. We have until 5 p.m. to hear your presentations and to ask questions. I believe you have agreed amongst yourselves on the order in which you will be making your presentations.
[English]
We are pleased to hear from you today. We are trying to give as much time as possible to the study of this bill. This is not only educational for committee members, but we want to be very serious about the study of the bill and listen to everything you have to tell us today, as well as the other groups.
Please proceed.
Ms Penny Dickens, Writers' Union of Canada: Thank you, Madam Chair, for this opportunity to testify before you today. I am testifying on behalf of the Writers' Union, the League of Canadian Poets and the Playwrights' Union of Canada, which together represent more than 1,700 professional writers, poets and playwrights, many of whom rely on their writing income for their livelihoods.
For writers, Bill C-32 is about money and control of their work. All writers want their work to be widely disseminated and read, and they all need payment, whether it is from an academic salary, the sale of books or articles, the production of plays, or through a collective for copying. However, thousands of educators and librarians do not want to pay creators of intellectual property for the use of their work. We are urging you to use the power at your disposal to ensure that writers are fairly compensated for the use of their work by making the following amendments to the bill.
We consider it crucial that Bill C-32 be amended so that exceptions in clause 30.2 and in clause 29.5(a) do not apply to works for which a licence is available from a collective society. The exceptions currently provided in clauses 30.2 and 29.5(a) will deprive many writers and playwrights of badly needed revenue and will in some cases significantly affect their incomes.
When someone pays a library 25 cents or $10 for a copy of an author's work, it is only fair that a portion of that payment be paid to the author who is the owner of the intellectual property. A modest payment to the author will not affect the libraries. The consumer, who finds the words written to be so informative or so inspirational that he or she must have their own copy, pays. That is as it should be.
It is wrong to legislate an exception for libraries, allowing them to charge for copies of writers' work while denying those writers a modest fraction of that financial transaction. It is also wrong to legislate an exception that allows the production of a play by educational institutions without permission or payment. Currently, playwrights license these amateur productions and receive a steady stream of modest royalties from them. In addition, playwrights license their work to professional community theatre groups. A licencee usually collaborates with the playwright to ensure the production has integrity.
These licences not only secure payment but also ensure that amateur and professional licences are not issued in conflict in the same community. Allowing this exception to stand will both reduce playwrights' current income from amateur productions and severely interfere with their expected income from licensed, professional productions.
We also consider it crucial that clause 6 be removed from the bill or amended. Clause 6 amends section 7 of the Copyright Act which deals with the term of copyright in works that remain unpublished at the time of the author's death.
As the bill is now drafted, writers will have to think twice about placing sensitive material or manuscripts in archives, and when they do, they will wish to place restrictions on access to much more material and for far longer than is now usual. This will be necessary because permission will not be required if someone wants to publish certain material 50 years after the writer's death. An immediate effect may be that certain personal papers of authors, both those still living and those already deceased, do not get deposited in archives and are likely to be lost.
Again, it is wrong to pass legislation that abruptly devalues authors' estates.
Personal papers and diaries of authors and people in public life are of great importance to the continued development of our understanding of each other and our country. The loss to Canada will be cumulative. We know that there is enormous pressure to have this bill passed without amendment so that it can become law before an election is called. However, we ask you to consider the effects of passing this punitive legislation. If this bill is passed hastily because of the timing of its consideration, it will be the writers who will end up paying for such haste, not just in the short term but in the long term. We ask you to take the time to get it right and to make these two vital amendments.
[Translation]
Ms Rose-Marie Lafrance, Director, Copyright Service, Union des écrivaines et écrivains québécois: The Union des écrivaines et écrivains québécois, which represents approximately 950 member, was founded in 1977 pursuant to the Professional Syndicates Act. Since 1984, through its copyright service, UNEQ has also acted as a collective society for the administration of reprographic reproduction copyright. It administers a program which involves awarding compensation every year to approximately 8,000 authors and 450 publishers from Quebec for the reproduction of literary works, books, reviews and newspapers. UNEQ issues reproduction licences to various users of copyright works such as educational institutions, libraries, federal departments, Quebec government departments, private photocopying centres and so forth. For the past 13 years, by encouraging open negotiations between users and copyright holders, UNEQ has succeeded in reconciling respect for copyright with access to copyright works. In other words, it has succeeded in reconciling the rights of creators and copyright holders with the needs and the financial realities of users of their works.
UNEQ has consistently defended the right of creators to be associated with all aspects of the economic life of their works. During the many years of consultations leading up to Bill C-32, UNEQ repeatedly restated its opposition to any new exceptions to the Copyright Act. Obviously, we were quite concerned when Bill C-32 was tabled, since it introduced into the legislation long lists of exceptions affecting educational institutions, libraries and archives. This prompted us to caution the Canadian government not to confuse accessibility of works and free access and not to jeopardize the work of collective societies.
Bill C-32 has since been amended to take into account many of our concerns as well as the existence of licencing schemes between users and collective societies. Bill C-32 as adopted by the House of Commons stipulates that commercially available also means available under licence from a collective society.
The government has also addressed the well-founded concerns of creators and their collective societies by limiting the scope of provisions which initially appeared to have devastating repercussions for authors. We are thinking here in particular about clauses 29.2, 29.4 and 30.3.
Any backsliding in this area would be very damaging for all those whom we represent, including many authors who, need we remind you, have to rely most of the time of very modest incomes. It is wrong to claim, as do some user groups, that Bill C-32 in its present form restricts access to copyright works. In fact, access to works is made easier through the existence of collective societies which represent many copyright owners. Furthermore, provided access to their works is not free of charge or worse still, translates into nothing more than the outright expropriation of their rights, all authors clearly have a vested interest in seeing that their works are disseminated as widely as possible.
We must not think that creators want to be above the laws of the market. It is not in their interests whatsoever to have their collective societies set unrealistic tariffs which fail to take into account the ability of users to pay or which might prompt the Copyright Board to reach an unfavourable decision.
When it comes to tariffs, Canadian societies have not been guilty of any excesses. Overall, UNEQ's tariffs are lower or equivalent to those of other collective societies around the world. It is also dishonest to claim that Bill C-32 makes collective societies all-powerful at the expense of users.
First of all, it should be remembered that collective societies negotiate most of the time with user associations that are far better equipped, in terms of finances and human resources, than they could ever hope to be.
It should also be remembered that the Copyright Act never authorized the making of multiple copies of a work. And yet, very few educational institutions, governments, companies and associations are not guilty of frequently indulging in this practice. Although the Copyright Act has been around since 1924, many users continue day after day to break the law and thus deprive authors of revenues that are rightly theirs.
Many educational institutions and governments in Canada have not yet entered into agreements with collective societies. In other sectors where similar agreements do exist, the process of negotiating or renewing licences has taken months, if not years, of discussion and effort.
Canadian collective societies are not powerful, but rather patient. They believe in open negotiations between users and copyright owners. Bill C-32 is, of course, a far cry from the ideal legislation that we have long been seeking. In its present form, particularly the provisions respecting libraries and periodical articles, the bill restricts the right of creators to use their work as they see fit and to receive fair compensation for the use of their works.
Everyone has had to make compromises in order to achieve the balance sought by the government between the user and the copyright holder. Authors and their collective societies have made major concessions and any further ones are out of the question. Time is of the essence because if the debate drags on, Bill C-32 could die on the Order Paper. If this were to happen, all of our sacrifices might well come to naught and our 73-year quest could be forgotten. This bill must be adopted because this country's creators cannot afford to spend four to five more years on Phase II of copyright review, while standing by powerless to stop the growing, uncompensated exploitation of their works.
It is time to move on to phase III and to the review of new dissemination technologies and strategies.
On behalf of the thousands of copyright owners it represents, UNEQ urges you to adopt Bill C-32 without further delay.
[English]
Ms Sandra Bernstein, Periodical Writers Association of Canada: Honourable senators, I have been a full-time freelance writer for 14 years. The Periodical Writers Association of Canada represents 400 freelance writers from coast to coast.
Members of the association make an often precarious living by licensing their copyright. Back in 1979, our handbook suggested that a good freelance writer could reasonably expect to learn $500 per week, or $26,000 per year.
In 1995, without adjusting for 16 years of inflation, our members earned an almost identical annual average annual income of $26,100. More than one-quarter of our members earned less than $12,000. The earnings of full-time freelancers actually declined 4 per cent from 1993 to 1995. Not surprisingly, about 90 per cent of our members say they cannot make an adequate living by working only for periodicals. Many are leaving the profession.
If it becomes impossible to make a living freelancing for magazines and newspapers in Canada, Canadian readers will lose access to the distinctive Canadian voices and perspectives that form an essential part of our culture. The pages of our publications will be increasingly filled with writing from foreign sources.
The single copy exception proposed in this bill would certainly exacerbate this serious trend. The exception in clause 30.2(2) entitles libraries, archives and museums to copy and sell any non-fiction magazine or newspaper article that is more than one-year old, without sharing any of the revenue with the writer who created it. Our position is that this and other exceptions should only apply where access to the work is not available through a collective society.
Ironically, this exception, which unjustly singles out non-fiction writers, has been proposed precisely at the moment when archived non-fiction articles have developed commercial potential because of the explosion of on-line information services.
The income that writers stand to lose from this exception is significant now, and will become more significant in the future.
The typical PWAC member now earns about $500 per year from all secondary licences. Photocopy licences comprise a fast-growing segment of that income which writers cannot afford to loose.
A recent survey by CANCOPY shows that almost 80 per cent of all photocopying of published material in Canadian public libraries is of non-fiction books, newspapers and magazines. Fifty-five per cent of the total is likely attributable to freelancers.
After deducting material owned by newspaper publishers and foreign material, the proposed legislation would deprive Canadian freelancers of royalties from more than 2.3 million photocopies made annually in public libraries.
As new distribution technologies cause the market for non-fiction articles to grow, non-profit and for-profit libraries all over the world are introducing document delivery services with powerful commercial potential. One Canadian example is the service offered by the North York Public Library. For your information, we have provided a copy of the promotional brochure for this service.
For a fee which easily runs as high as $20 per item, the library will fax to customers their E-mail articles taken from library collections or resold from commercial data bases. It seems the library plans to take advantage of the single copy exception in this bill to operate this service without sharing any of the revenue.
We all know these are hard times for libraries. We do not agree, however, that in times of declining public support, libraries should respond by denying Canadian creators even a modest fraction of their revenues from reselling our work. Rather, adequate public funding for libraries is the answer.
Some of the most recent amendments to the bill have attempted to address some of our concerns, for which we are grateful. If you have time to amend the bill, we would not want to see these changes weakened, notably the new qualifications for immunity on self-serve copiers and exclusion of motive for gain.
Given sufficient time, we would prefer to see these clauses more carefully worded, to reflect better the intent of the drafters. For example, in clause 29.3, the "motive of gain" clause, you could drive a Mack truck through the phrase "overhead costs". Since the institutions concerned are usually non-profit, everything is potentially overhead. This "motive of gain" is a key point in the context of the recent aggressive introduction of for-fee services in libraries, as previously discussed.
In a recent discussion on the Internet, the CEO of the Brantford Public Library wrote that if librarians did not get this exception, the copying revenues that subsidize the book budget in this library would disappear and with them the ability to buy more good Canadian material. That, of course, does not address the result that good Canadian material will rapidly disappear because writers will be forced to seek alternative employment.
In conclusion, the single copy exception is not about public access, which is easy and affordable through a CANCOPY licence. Access is a smoke screen. We are talking about sharing revenue equitably and allowing Canadian writers to survive financially.
The bill as worded offers our sector no so-called balance. Rather it confiscates our property and reduces our protection in the law, offering nothing in return. You can help right this wrong by amending the bill to eliminate the single copy exception where work is available through a collective.
Mr. Andrew Martin, Executive Director, CANCOPY: Honourable senators, what CANCOPY does is summarized in the first paragraph of the submission that was provided to your Clerk. We would be happy to provide members of the committee with more information if they so desire.
Simply, we license photocopying rights on behalf of writers and publishers. We do this through agreements with schools, colleges, universities, corporations, and governments.
Bill C-32 has been almost a decade in the making. The original version, introduced last April, was very closely based on drafts that first appeared as far back as 1989. In our view, the original version of Bill C-32 was deeply flawed. Changes were made during the committee and report stages in the other place, as a result of which Bill C-32 is fairer, far more realistic and, frankly, workable.
You will be told that these amendments were ill-conceived, hastily drafted and not adequately discussed. In our submission, this is not the case. What happened over several months following the original introduction of the bill was that the committee and members of the staff of Canadian Heritage and Industry Canada listened to testimony and read the submissions. The committee and its advisors concluded that there were better ways of balancing user needs and creator rights. The amendments, most of them introduced in December, simply reflect that conclusion. What we have now is a bill that is probably the most modern and forward-looking in the world.
Over the next few minutes, I will attempt to do three things. I will put Bill C-32 into some kind of financial context, I will address some of the myths that appear to be circulating about Bill C-32, and I will briefly discuss some of the amendments that were introduced in the other place and which appear to have drawn the strongest criticism from representatives of user groups.
Let me put Bill C-32 in context. The maximum cost for copyright licensing per student in the kindergarten to grade 12 school sector is $2 per year. Compare that to the average cost of educating a student, which is between $6,000 and $8,000. One can see that, by comparison, the fee really is not very high.
In the post-secondary sector, the kinds of copying capable of being affected by elements of Bill C-32 cost $2.50 per student. My son, who is a student, pays more in GST for renting a locker per semester than the college has to pay in copyright licensing for him. It covers one large cup of coffee or two small cups of coffee. This is not much money.
For public library licensing, under an agreement which is now close to being concluded with representatives of the public library sector, the cost per Canadian will be about 1.2 cents per year. It will not bankrupt anyone.
There are several myths circulating about Bill C-32. I will answer them this way: No, it is not true; no, it is not true; no, it is not true; and, yes, it is true, but--
No, it is it not true that Bill C-32 will in any way restrict the activities of librarians and educators. Let us be frank. The lack of exceptions in the current law has never impeded them and the very small limits that are now placed on some of the proposed exceptions will not interfere with how they operate, either.
No, it is not true that Bill C-32 will leave Canadians worse off or less competitive with people in other countries. Canada's collective licensing regime is already the envy of academics in the United States and Great Britain, and nothing will change as a result of Bill C-32.
No, it is not true that Bill C-32 will result in increased costs for libraries and educational institutions. None of CANCOPY's licences will be more expensive if this legislation is enacted.
No, it is not true that Bill C-32 will give new powers to collective societies. What it will do is give quite unprecedented benefits and protection to people who use collective societies to license their uses of copyright material.
Yes, it is true that Bill C-32 has been amended in some ways quite radically, but it still demands major sacrifices from Canadian creators and publishers, and we feel they should not be asked to make any more concessions.
There are three amendments that face the strongest criticism by people who have appeared and who are due to appear before this committee.
Mention was made this morning of a small change relating to assignments. The original version of Bill C-32 had an exemption for any copying done by an educational institution for the purpose of an assignment.
The problem that producers and creators have with this is that the term "assignments" is not defined anywhere. I can refer you to letters in the newsletter of the Association of Universities and Colleges of Canada which make it very clear that assignments embrace almost the entire teaching process. They are not simply a method of assessing students.
In several letters, professors wrote about how assignments now involve assigning reading, often chapters of a book, a whole book or several articles. We felt, and the committee agreed, that if the exception included assignments, then that, frankly, would be the end of the educational licensing programs run by CANCOPY and UNEQ. That is why the word "assignments" was removed.
It has been suggested by some that it should be brought back in with qualifiers referring to formal assignments for grading purposes. However, these are terms of art; they cannot be defined. Our view is that as assignments relate to part of the teaching process, not merely the assessment process, the committee was right to make that amendment in December, and we ask you to leave it as it is.
Second, there has been immense discussion around the term "commercially available". In the Standing Committee on Canadian Heritage, an amendment was made to the term "commercially available", which said that certain exceptions would not apply if a work or right to copy a work was commercially available. "Commercially available" was defined as including available under licence from a collective society.
You will be told that this effectively guts the exception, but our response to that moves on two, perhaps three, levels. The first is that there is an increasing number of works now available only through licensing mechanisms. It is the most effective way of producing works for which commercial demand, in the form of a commercially published work, may be limited. Many people use licensing to enable users to convert works into other formats, so the use of collective licensing is growing. Therefore, to say that "commercially available" includes licensing seems to us reasonable.
It was also envisaged in legislation introduced but not pursued nearly eight years ago. Dr. Lorna Marsden, then a member of the Senate, introduced Bill S-8, which said that virtually all educational uses of copyright material would be permitted only if the right to use the work was not licensed. I gather that is not how she would choose to characterize her legislation now, and it is certainly not how the AUCC would characterize it now, but if you read Bill S-8, which you can obtain from the Library of Parliament, you will see that is what it said. It is therefore not a new concept to say that "commercially available" includes licensing.
Librarians have expressed some concern regarding how the provisions attaching to "commercially available" might work. They have said that this could result in considerable delay while users endeavour to find out whether or not a licence can be secured, but I would submit to you that the answer to that lies in the legislation itself, which says that the licence has to be available within a reasonable time. If it takes too long or costs too much, then users will have the benefit of that particular exception. Again, we ask you to leave that part of Bill C-32 exactly as it is.
Finally, let me say a few words about the proposed immunity for self-serve copiers. Bill C-32 in its original version said that libraries and educational institutions would not face any legal liability for copyright infringement on photocopying machines installed by the institution, provided they posted signs near the machine warning people about the Copyright Act.
Every representative of the producer and creator community, when appearing before the Standing Committee on Canadian Heritage, said that really is not good enough. Just putting up a notice on a machine that you have installed, a machine often designed to copy things that clearly will infringe copyright, does not quite go far enough. The amendment that was made -- and it was not ill-conceived or hastily thought out; it was contained in numerous submissions to the standing committee -- went one step further. It said in addition to posting signs, the institution or library also ought to have a collective licence. That is fair enough. They have taken steps to address the vast majority of what will be copied and to pay for it and this protects them against maverick, inappropriate use of the machines.
It has been suggested that this poses a threat to institutions and libraries. I submit it is the reverse. It gives them an unprecedented level of protection, and the real loser, if there is one, is the copyright owner who will then not be able to bring legal proceedings against a library or educational institution that does have a collective licence. This does not threaten in any way the users of photocopying machines or the people who install them.
I want to end with a prophecy. Immediately following our presentation, you will hear from educators who will tell you that Bill C-32 will make our schools and universities uncompetitive, and that it will dry up scholarship in Canada. They will be followed by lawyers who will tell you that unless the legal profession is somehow immune from the provisions of the Copyright Act, the administration of justice will grind to a halt. Indeed, you might want to look at the transcripts of the Standing Committee on Canadian Heritage where one of the members on the committee said that he thought the $300 per hour that it costs to consult a lawyer was a slightly greater impediment than a few dollars a year in copyright fees. You will hear tomorrow from librarians who will regale you with horror stories and the terror in which librarians live waiting for the copyright police to knock at their door.
Obviously, we disagree with all of those propositions. My prophecy is simply this: If you enact Bill C-32 without amendingchanging anything in it, absolutely nothing will change. Thank you.
Mr. Tom Whyte, Educational Media Producers and Distributors Association of Canada: I am here representing 22 companies, institutions and organizations producing audio-visual learning materials, including films, videos, and slides, in both English and French, and distributing them to educational institutions and community organizations throughout Canada.
The annual sales of our members amount to approximately $20 million and account for approximately 90 per cent of sales of audio-visual learning materials in Canada.
Our membership includes a few public-sector companies, but most members are small, independent, Canadian businesses. In addition to our own productions, our members distribute thousands of programs produced by other small, independent, Canadian producers. Although we also distribute a great deal of material produced outside Canada, more than 40 per cent of what we distribute is produced in Canada. This is a remarkable percentage given the high cost of production, the small size of the Canadian market, the lack of government support compared to the subsidies provided to the feature film and television industry, and the financial restraint on the schools, colleges and other institutions that are our major customers.
Despite severe cutbacks, education remains a multi-billion-dollar industry, with its budgets having kept up with inflation in every year from 1965 to the present, but with a smaller and smaller proportion of those increased budgets being spent on learning materials. At the same time as our share of the pie is declining, we are faced with new technologies, most notably the video cassette recorder, that have led to widespread piracy of our members' productions. In the face of this piracy and educational purchasing that has not kept up proportionately with overall educational expenditure, we support Bill C-32's provisions which introduce or strengthen collective administration of copyright in instances where it is impracticable for the individual rights holders to administer and enforce their own copyrights.
We agree that it is appropriate to have legislation that provides educational institutions with access to our members' copyright works through collective administration, although we are disappointed that the particular scheme proposed in Bill C-32 has not established the single mandatory collective that we ourselves had proposed.
We are concerned that the legislation will result in more than one collective. If collectives proliferate, they will not be cost-effective.
We do, however, very much appreciate the improvements that were made by the Standing Committee on Canadian Heritage while the bill was in the House of Commons, most notably the clear exclusion of documentaries from the off-air taping exception for news and news commentary programs and the deletion of the provision which deemed a student of an educational institution to be a person authorized to tape off air.
We fear that educators will appear before your committee and ask for further amendments or removal of some safeguards added to Bill C-32 in the House of Commons. They are likely to do so on the basis that the education sector has no money. The truth is that billions of dollars are spent on education and there is always a choice as to how those education dollars will be spent.
Finally, although we were adamantly opposed to the form of the off-air taping provisions in Bill C-32, we supported the bill's policy intent to facilitate easy access by educational institutions to copyright materials in certain instances through collective administration, and we now wish to put on the record our intention to try to make this particular form of collective administration work.
We do, however, urge that the government delay proclamation of the off-air taping exception clauses until related regulations have been established and the new collectives have a reasonable opportunity to put tariffs in place. Otherwise, the off-air taping clauses will we become de facto exceptions, something our struggling industry cannot afford. Thank you.
Senator Roberge: Ms Dickens, I see that you are proposing some amendments to Bill C-32. You also know that there is a chance that an election will be called next week. If such is the case and we propose amendments to Bill C-32, the chances are that the bill will be put to rest until the next Parliament sits.
If you had your choice, would you prefer to pass Bill C-32 as is, without amendments? I should also like the representatives of the other association to answer that question.
Ms Dickens: We would like the amendments passed.
Senator Roberge: And lose the bill?
Ms Dickens: I cannot read Mr. Chrétien's mind, but this is not the end of the world. This is not a cliff that we are on. Copyright is a long-term proposition and it affects the writers' works for their entire life and beyond. It should not be done in haste.
It is most unfortunate that this bill has not reached you before this point, but to pass this bill because there might be an election and because we might be running out of time is wrong. These exceptions are very important. They are very important to the creators. Mr. Martin from CANCOPY says that things will not change. They may not change tomorrow, but they will change over time. I think these exceptions to the creators are really harmful.
Senator Roberge: May we hear from the other members of the panel?
Ms Ruth Biderman, Periodical Writers Association of Canada: We agree. The timing is unfortunate. We know there are many things in this bill that are good for other artists and creators. This bill will take money out of writers' pockets without the amendments we are requesting. There is no way we can say that we would be in favour of its passing without those amendments.
Mr. Martin: We are really the wrong people to ask. We administer rights on behalf of other people, so I prefer not to express a view on that.
[Translation]
Ms Lafrance: I think we made our position very clear in our presentation. Although Bill C-32 is not perfect and violates certain creators' rights, we would prefer to see it adopted rather than have to spend several more years discussing this matter.
[English]
Mr. Whyte: We should like to see the bill passed.
Senator Johnson: I have a supplementary question to that posed by Senator Roberge. This relates to the answers we have received concerning amendments.
We have heard from several other groups who were requesting amendments. As you know, the government rejected all these proposals when deciding on the final version of this bill. This is not a bill that has come about in the last 48 hours; it has involved 10 years of work. The minister told us yesterday quite emphatically -- and I am sure she told you this also -- that we cannot go back and redo it or fine-tune it any more.
The political reality is that, if we amended it in the Senate and sent it back to the House of Commons, it would open up every other area where anyone had a small complaint with the bill. It is like pulling a thread out. We still have other options, given that everyone in the Senate agrees.
I am sensitive to your concerns. I even asked the minister yesterday about the amendments from the Writers' Union of Canada, as examples of the kinds of things that we want changed.
The bill provides for a review of this present legislation after five years. I think that is too long. It should be reviewed on a more regular basis -- given that the bill passes, of course.
There was also some reassurance given that the situation regarding amendments would be reviewed again in Phase III. The only problem with that is that at this point no one can tell me when it will start, how it still start or what we will do. Furthermore, there is no prototype for me to refer to, so I cannot assure you that this will be dealt with at that time.
I should like some feedback from you because we want to be sensitive to peoples' concerns and to amend the legislation, if that is possible. Considering the fact that these amendments will most likely be reviewed during Phase III, do you think that that is any kind of possible solution to your concerns?
Ms Dickens: It would be like trying to take a bone out of a dog's mouth -- a verge large dog.
Let us look at the record. For the last three decades there have been photocopiers in libraries. Photocopying was illegal but it has been going on for 30 or 40 years and writers have been suffering as a result. The changes in 1988 gave us the ability to set up collectives. Those collectives have been so effective that the Copyright Board has not had to rule on anything because nothing has been taken to them for a ruling; there has always been a settlement.
I believe these amendments are vital to our members. Our members are those people who make a living from their work. They do not have salaries. Sometimes it is hard for people who have a regular income to understand that you make a living out of your head and every dollar counts. It buys the groceries this week, the shoes next week, and so on. I believe that these amendments impinge unfairly on creators' rights. We have collectives. Let them pay for the copies. If this bill is passed, it will be impossible to reverse it.
We have noticed during the lobbying on this bill that, at the push of a button, 300 letters can appear on your desk. Our writers are spread out all over the country. Approximately 90 per cent of them are not even on line. If a country does not look after its creators, eventually you will not have a country.
Senator Johnson: Would anyone else care to comment on that?
Ms Biderman: Things are changing very quickly for writers. With all the technologies that are being developed, there are a lot more ways to make money by distributing the work of writers. We know the vultures are circling. Everyone wants a share of that money and that action. They also seem to want the writers' share. We represent writers who make very little money, particularly in proportion to their contribution to our culture. They are faced with large publishing chains who want them to give up their rights to secondary uses of their work and not to be paid for it.
This legislation would enshrine the principle that there are some cases where it is permissible for someone to copy and sell the work of writers without paying them for it. We cannot go along with it.
Senator Johnson: I think your position is clear. The committee is fully appreciative of your situation and we will review your testimony carefully when we are considering the bill point-by-point.
Senator Kinsella: To return to the question by Senator Roberge as to your preferences on this bill in the light of an impending election, the House of Commons had the bill since this time last year -- that is, one year. It is a mockery of the Senate of Canada to expect us to deal with a bill as complex as this in a matter of three or four days, or even 10 days, when the House of Commons had it for a year. If the bill was amended by the Senate and returned to the House of Commons, they could deal with it in a few days. If the anticipated last day of sitting is one week from this Thursday, they would need to have it by Tuesday.
What hardship would befall any members of the panel if the bill was reintroduced in the new Parliament in the fall? This involves a competition about rights, a competition over property. There are legitimate claims from all the parties. Many have argued that the balance that was struck after many years of negotiations between the interested parties was well-reflected in the bill as initially tabled. Many changes were made to it in the other place. In order for us, then, to deal with this bill, we need more time than a few weeks.
Would you respond to my question as to what hardship would befall your interest area if the bill was reintroduced next fall and appropriate time for study was given to the second House in our Canadian Parliament?
Mr. Paul Ledoux, The Playwrights' Union of Canada: All of us have been sitting around tables now for the last few days agonizing over whether or not we should say, "Pass this bill." There has been pressure on the writers' organizations to come on side and say, "Let us get it done because most of us feel there is a lot of good in this bill." At the same time, it seems that some of us -- a very small portion of this industry in many ways -- have just been knocked aside. I do not think anyone has been thinking too much about the interest of playwrights in the formation of this bill. It appears that we are close to having something fine, but we do not have it yet. If I may give you an example of a problem, it could easily be damaging to playwrights to have university productions of their work in areas where there have been no professional productions of it.
If we go back at it again next fall, perhaps we will get it right. It is not right yet. When something is wrong, it is wrong. To say that it is almost right is not good enough. It will not kill us to have another go at this, at least from the playwrights' point of view. What will kill us is having universities producing our works before we have had professional productions done in communities. Once the university does it, it will never be done professionally.
Senator Spivak: We are told that this bill is a balance and that it is the best compromise that we could possibly achieve. It is not a balance if, on the one hand, you have a huge corporation and, on the other hand, you have a writer who is only making $10,000 a year. It seems to me that you struck a chord on the balance here. I sit on the agricultural committee. The producers who are the farmers get one cent more, and the middle men make a killing. It does not seem to be fair.
To return to the question that Senator Kinsella asked, do you think we are so far off-balance? Do you endorse the comments of your colleague who said that we might be approaching something fine here but we do not have it yet?
Ms Dickens: We would have it with the amendments we proposed.
Senator Johnson: There are other groups with amendments as well.
Senator Spivak: They are of different weights.
Do you think the balance has shifted too far away from the writers and too far in the direction of the other people such as the students and so on?
I know it is an unfair question to ask you because you are a writer.
Ms Dickens: I represent the writers. I think Margaret Atwood said it very well after she appeared in the other place. She answered a question from the media. Her statement happened to be about libraries, but it applies to all exceptions to copyright. "They want a free lunch, and they want our lunch." That is not fair. It is not balanced. We do not expect life to be fair, but we do expect the legislature to bring down legislation that does not impinge on the rights of people who make a living from their wit. It might not be a grand living in many cases, but I would hate to live in a country without those rights.
Senator Johnson: I wish to ask a question supplementary to that. What were you told in the other place when you presented your case? I have not read the transcript as yet, and I apologize for that.
Ms Dickens: Our list was much longer in the other place.
Senator Johnson: Did you get any of it?
Ms Dickens: To be fair to the committee, they did listen to many of our points -- for instance, the issue of the exception for assignments, which Mr. Martin mentioned. The fact that that was taken out of the educational exceptions was absolutely vital because it meant teachers could have copied an entire book for free.
The committee did hear some of the things that we had to say. However, people do not think of copyright as property. It is real property. For the writers, that is sometimes all the property they leave in their estates. The legislation, in clause 6, truncates it just like that, simply because other people want to copy.
We support the changes which allow archivists to make copies for people for study, but to truncate the estates of writers -- overnight it will go from after 50 years after publication to five in some cases, or nothing -- seems to be very harsh. We consider this punitive legislation.
Senator Johnson: Why do you think that was included? Do you have any sense of that?
Ms Dickens: Look at the balance of the witnesses they heard <#0107> the creators, the educators, the libraries, the users. The users outnumber us by approximately 100 to one. The users beyond those, the students and the patrons of the libraries, number in the millions. There are only a few of us.
Ms Marian Dingman Hebb, Counsel to CANCOPY, PWAC, The Playwrights' Union of Canada, and EMPDAC: I wish to add to that. You ask whether or not the committee was listening. It is interesting that exactly the same point was heard in respect to the ephemeral recording right. A new proposed subsection was added in by one of the house motions. It is proposed subsection 30.8(8). A simple motion was put forward saying, "This section does not apply where a licence is available from a collective society."
Senator Roberge: They were listening, but they did not understand.
Senator Johnson: Thank you for the clarification on that.
[Translation]
Senator Roberge: I am somewhat surprised. I am trying to understand your position in Quebec. Since you are involved with associations similar to others in Canada, why is your position on this matter different?
Ms Lafrance: We agree completely with what the Writers' Union has said. To put it simply, we have spent years discussing this bill, participating in consultation committees with users and debating this matter. If the bill is not adopted now, we do not see how, by putting this matter off until a later date, we can succeed in adopting legislation down the road. We are not necessarily opposed to the position taken by our colleagues from the Writers' Union. Far from it. Initially, we were not at all in favour of seeking a balance between authors and users, since in our opinion, if one side was at a disadvantage, it was clearly the authors. However, after discussing the matter at length, we would prefer to have the bill passed in its present form rather than go with some hypothetical bill in five or ten years' time.
Senator Roberge: You are tired of the whole thing.
The Chair: Have you something further to add?
[English]
Senator Johnson: Someone said to me this morning that this copyright legislation is barely up to speed with the 1970s and that if we spend another number of years at it, we will be lost in the shuffle.
The Senate's subcommittee on communications has been studying telecommunications for a year now. It is true that we are behind the eight ball on these issues of copyright in Canada. We obviously do not want to spend another 10 years studying this legislation, but is it fair to say that we are just getting up to speed?
Mr. Martin: One of the thrilling parts of my job involves examining copyright legislation in other countries. I would say we are up to the late 1980s or early 1990s, to be honest.
Senator Johnson: That is terrific. I thought someone was being pessimistic.
Mr. Martin: No, no. The language and concepts envisioned by copyright legislation tend to be rather archaic, but the solutions and structures proposed in Bill C-32 are actually surprisingly modern and forward-looking. As I said earlier, after having talked to people in other countries who produce, administer and use copyright material, I think Canada's Copyright Act, and certainly Bill C-32, is very progressive. The way in which solutions are being designed to enable the efficient and economic use of copyright material is way ahead of what you see in most other countries.
The Chair: Thank you very much for your presentation.
Honourable senators, our next witnesses are representatives from the Association of Universities and Colleges of Canada, the Canadian Teachers Federation, the Canadian School Boards Federation, the Canadian Association of University Teachers, and the Association of Canadian Community Colleges.
Please proceed.
Ms Sally Brown, Vice-President, Association of Universities and Colleges of Canada: Honourable senators, I wish to deal with two of the proposed amendments we would like to see, and my colleagues will follow in the order in which we are seated.
All of the national education organizations you see here today believe that as a result of the flurry of amendments made in the heritage committee -- some 125 of them -- Bill C-32 no longer strikes an appropriate balance between the rights of those who create works and the needs of those in the not-for-profit sector who use them.
When the bill was tabled on April 25 of this year, both Ministers Copps and Manley stated publicly that the bill, as tabled, was thoughtful and balanced, and that it appropriately reconciled the competing interests of those likely to be affected by it.
At that time, all of our organizations, and indeed many library organizations, agreed that Bill C-32, while far from perfect, represented a workable compromise and a balanced piece of legislation. However, after approximately 125 amendments, almost all of them in favour of creator groups, we believe we should all be questioning the survival of that balance. That, to us, is the most compelling reason for sober second thought in this chamber.
There is as great a public policy interest in reasonable educational and library exceptions as there is in protecting the rights of creators, and the two are not mutually exclusive. Universities are both creators and users of copyright works. We understand the need for balance in our copyright law. What seems to have been completely forgotten in this debate, which has been driven largely by commercial interests, is that educational institutions are not commercially driven and academic creators have different incentives. The incentives that spur creation in the academic environment are as much about the dissemination of their works, and access to the works of their peers, as it is about remuneration. Bill C-32 addresses the needs of those who create works for commercial gain but does not adequately address the needs of academic creators for reasonable access to the works of their colleagues in Canada and abroad.
This is not about the works of Margaret Atwood. It is primarily about access to scholarly works produced by academics at public expense. Nor, regrettably, is it even about Canadian works. Studies reveal that 75 per cent of the books and 78 per cent of the periodicals copied in Canadian academic libraries are of foreign origin. Bill C-32 as drafted will increase the flow of royalties from educational library users of copyright materials out of the country. Ironically, our own scholars, researchers and students will now pay for certain uses of American works for which their American colleagues are not even required to pay.
Minister Copps indicated yesterday, in comments to this committee, that creators need to be paid when their works are used for commercial purposes. We agree totally. We even go further and agree that there are some uses in the not-for-profit, educational and library settings which should require, and do require, payment. However, there are certain limited uses, such as those set out in the original exceptions to the bill, which, in the public interest, should be permissible under statutory exception.
Some have unfairly characterized any use of copyright works without payment as theft, and suggest that our position <#0107> the position of the educational groups here -- amounts to a desire not to have to pay for the use of copyright works. This is simply not true. Canadian universities, our libraries, faculty members and students, spend considerable sums of money purchasing copyright works. In fact, in 1995, university libraries paid $173 million to buy books and periodicals. On top of this, our member institutions paid millions to collectives for the use of copyright works. The not-for-profit institutions have signed agreements with collectives faster than the commercial sector. This would continue to be the case even if all the exceptions originally in Bill C-32 were passed.
The minister suggested yesterday that if educational institutions are willing to pay for desks and other equipment, they should be willing to pay for the use of copyright works. In response, we note that once we have purchased a desk, we do not have to pay over and over again to sit at it. Moreover, when we purchase a desk, we are not compelled by law to purchase from a monopoly created by legislation and in a market in which we have no buying power.
As I indicated already, we pay substantial sums annually for the purchase of works. Our libraries buy the books. We accept the principle that we should pay for many subsequent uses of even those books we buy. We also believe, however, in the principle that it is in the public interest to permit students, faculty members and library patrons to make certain limited uses of copyright works under statutory exception, without cost, to further education and research. Nothing in these exceptions will materially disadvantage rights holders and none of the statutory uses substitutes for the purchase of works.
I will deal with two specific issues before turning the floor over to my colleagues. The first is the status of several educational and library exceptions in Bill C-32 that are constrained by restrictions which make them inoperable where a copy of a work is commercially available.
When Bill C-32 was tabled, we understood that the intent of these restrictions was to protect the normal commercial exploitation of a work -- that is, to protect the market for new copies of works which had been separately published and were available for sale through bookstores or other retail outlets. Similar restrictions on certain exceptions exist in the copyright laws of other jurisdictions, such as the United States and Australia. We accepted this compromise in the bill.
However, the meaning of the phrase "commercially available" was changed fundamentally by the Commons heritage committee so that this phrase now also means "available through a collective licence". This amended definition undermines several of the educational and library exceptions by making these exceptions inoperable whenever a collective can license an educational or library user to make a copy. As a result of this change, the government has given educational and library users the exception with the one hand and taken it away with the other. This change flies in the face of the balance the government promised when Bill C-32 was introduced.
Minister Copps indicated yesterday that this change will cost institutions about $500,000 a year. It is unclear how the minister arrived at this figure, but the real issue is not cost -- it is the principle. Collective licensing complements statutory exceptions; it is not a substitute for them. Statutory exceptions exist in the copyright laws of other jurisdictions whether or not collective licensing is available. There is no justification for destroying this principle in Canadian copyright law.
Furthermore, the change to the definition of "commercially available" creates an unacceptable precedent which may harm the interests of educational and library users in Phase III. We have already seen with Bill C-32 that some publisher and writer groups are pushing to limit the operation of all the exceptions in the bill to instances where collective licensing is available. We have no doubt that this pressure will continue into the future in all discussions around Phase III reform. We therefore strongly urge the committee to restore the original definition of the phrase "commercially available."
The second and last issue which I should like to raise is the proposed exception exempting non-profit educational institutions, libraries, archives and museums from liability for infringements which occur on self-serve photocopiers.
Bill C-32, as tabled, provided such an exception from liability, as long as the appropriate notice warning of infringement of copyright is posted near the photocopying machine in the prescribed manner and location. This exception, in our view, simply codified a protection which likely exists under the common law.
A Canadian Heritage Committee amendment changed the nature of the exemption so that it is no longer available, in effect, unless an institution has a licensing agreement with a collective society. Similar exemptions in other jurisdictions are based on the posting of an appropriate warning notice and do not tie the exemption in any way to collective licensing.
There is no compelling rationale for tying the exemption to collective licensing. The effect of this condition is to hand collectives a large club to coerce non-profit institutions to become licensed. They do not need this club.
While all AUCC institutions are currently licensed, and hope to be in the future, there is no guarantee over the long run that our members will continue to find the terms and conditions of collective licenses to be advantageous, especially in light of continued demands for higher tariffs. Not all non-profit institutions are licensed.
Of even greater concern, we have received legal advice that the amendment exemption from liability, which is ostensibly designed to benefit non-profit organizations such as ours, may actually narrow the protection the institutions may have enjoyed under common law.
It is highly likely that, under the common law, the posting of an appropriate warning notice would provide institutions such as ours with adequate protection from liability for infringement on self-serve copiers. This statute overrides the common law. Our institutions may now be worse off.
We ask the committee to return this item to the exemption that was in the bill prior to the heritage committee hearings.
[Translation]
Thank you for your patience. I will now turn the floor over to Pierre Killeen.
Mr. Pierre Killeen, Government Relations Officer, Association of Canadian Community Colleges: It is a privilege for me to appear before the Senate Committee on Transport and Communications. My name is Pierre Killeen and I am the Government Relations Officer for the Association of Canadian Community Colleges.
[English]
Our association represents 175 publicly funded community colleges, technical institutes and CEGEPs in the 10 provinces and two territories in Canada. Copyright is of fundamental importance to the mandate of our institutions. It is our lifeblood and it is of crucial importance to learning and training in Canada.
Copyrighted information products are the basic building blocks of learning and training at Canada's colleges, technical institutes and CEGEPs. They are the tools of our trade. It follows, then, that the ability of our institutions to teach and our learners to learn is dependent upon balanced and equitable access to these copyrighted materials.
Bill C-32, as it now stands, is a barrier to learning and training in Canada. The effect of Bill C-32 will be to turn our learning institutions into information controllers, information police. What we need is the legislative ability to turn our institutions into information creators, information incubators, information networks.
The Senate of Canada today, or in the very near future, has the ability to make the changes required in order to ensure that creators are justly rewarded for their efforts and that learners have the means to learn, to work and to survive in the complicated, knowledge economy or knowledge environment that every Canadian finds himself in today.
Unfortunately, the educators, students, librarians, and educational institutions have been portrayed as wanting something for nothing. This is not the case. What we are asking for today is the balance and the flexibility enjoyed by our counterparts in the United States.
Honourable senators, what we are asking for already exists in the common law legislation of the United States, Australia and New Zealand. These changes are achievable.
Please allow me to bring to your attention today a few examples of the implications of Bill C-32, as it now stands, for our learning institutions. Canada's colleges and technical institutes are major trainers of multi-media creators. Sheridan College, for instance, is located just outside Toronto. Its graduates are internationally sought for their expertise in creating multi-media products. It is no coincidence that Disney studios recently decided to locate in Vancouver and Toronto. The quality of Canadian talent coming out of our educational institutions is world-class.
Multi-media creation by its nature implies taking different kinds of information -- whether they be film clips, sound recordings or something that is text based or written -- and assembling them, in effect creating a new product, a new kind of packaging for information.
Should Bill C-32 come into law as it now stands, our institutions will find themselves in very difficult circumstances. Our students will not have the materials or the ability to access materials that they will require in order to create multi-media products. More often than not, our institutions will have to employ up to five lawyers to secure the rights so that our students can create these products.
Copyright is crucial to the ability of our institutions to fulfil their mandates and for students to be able to create new works.
Clause 29.4(2) of Bill C-32, in its original form, would have provided our schools and students with the ability to reproduce, perform or communicate to the public, by telecommunications, a work or other subject matter for any purpose related to the giving of an assignment, test or examination on the premises of an educational institution. Unfortunately, this provision, which would have given our schools the means to educate people, to train multi-media creators, was amended by the Canadian Heritage Committee in two very important ways.
First, the word "assignment" is deleted from the bill that is before you today. Second, the definition of "commercially available" has been amended in such a way as to make these exemptions useless.
I would defer to my colleague, Ms Brown from the university sector, and what she has already brought to the committee's attention regarding "commercially available". Nonetheless, we suggest that the reintroduction of the term "assignment" or another term such as "multi-media project" or "multi-media assignment" would provide our institutions with the means and the flexibility to fulfil their mandates.
The second example I should like to draw to your attention is one in which an instructor wants to show a film to his or her class. What we suggest that instructor do is go to the local video store, rent that film and, in turn, present it to their classroom. Should Bill C-32 become, that instructor would be violating our copyright laws. Under this bill our institutions would be required to pay for the right to show films in our classrooms. Effectively, Bill C-32 would require us to pay the person who owns the Canadian distribution right for this particular cinematographic work.
More often than not, these films are foreign or of American origin and we end up paying the middleman for the right to perform these works, not the creator of the original work.
It is interesting to note that Bill C-32 provides educational institutions with exceptions concerning performance rights, for the performance of live works by students, for the performance of sound recordings and for the performance of television in their classrooms. However, it is silent on cinematographic works, on films. Therefore, we recommend that clause 29(5) of the bill be amended by adding an additional subparagraph (d) to include "the performance in public of cinematographic works".
Give us the same flexibility that educational institutions in the United States enjoy. Educational institutions in the United States do not have to pay for the performance rights to show movies in their classrooms. They are granted an exception.
The last example that I should like to bring to your attention is something as simple as newspaper articles. Let us say that an instructor in electronics engineering wakes up in the morning and it comes to his or her attention that there has been a new scientific breakthrough in the field of electromagnetics.
Perhaps this breakthrough came to the teacher's attention as a result of reading the newspaper. If that teacher were to decide to make copies of that newspaper article and distribute those copies to students in the classroom, that teacher would be violating Bill C-32.
In this case, not only will that teacher and that institution be civilly responsible, but they will also be criminally responsible for the simple act of making a photocopy of an article in the Globe and Mail and distributing it to students in the classroom. However, if a teacher in the United States should want to photocopy the same article, this would be perfectly legal in the United States. Do we want to effectively give teachers and students criminal records for trying to advance the cause of knowledge or education?
Dr. Savage, from the Canadian Association of University Teachers, intends to address the issue of criminal sanctions. Please keep the example that we have brought to your attention in mind when you are asking questions.
Given these absurdities, you may be asking yourselves: Who will benefit from Bill C-32 and why are we going ahead with this? From our perspective, our answer is for the benefit of the companies that own the Canadian distribution rights to films, music and entertainment products, American publishing companies and, finally, the copyright collectives.
We have difficulty believing that the answer to the global, technological challenges facing the Canadian book publishing industry and Canadian creators, should be a tax on students and a tax on learning. Surely we must not sacrifice our future in order to pay for the past.
Mr. Harvey Weiner, Member, Canadian Teachers' Federation: Our federation represents more than 240,000 teachers in elementary and secondary schools in every province and the two territories of Canada.
I should like to approach this presentation from the perspective of teachers who are working with children. Children are not represented here today and have not been represented throughout this debate by the more than 80 lobby groups that senators and members of the House of Commons have been hearing from on a fairly regular basis.
As teachers, we do not have any say in the negotiation of the collective licences and as to what materials are covered by those licences. Those negotiations take place for the most part with provincial education ministries and in some cases with school boards themselves.
We do not, in fact, buy the books and materials that our students have access to, or the films and other resources that we use in the classroom to try to give our students the best possible education as we move into what has been called the knowledge age of the 21st century.
Students do not have much say in these issues. We, however, recognize that there is a political and public responsibility to ensure that all students, on an equitable basis, have access to these materials. For us, this is a critical issue.
We often hear that teachers are interested in getting more free materials. You must seriously question that remark.
Teachers, as Canadian citizens, have no more or no fewer rights, in terms of copyright, than any other Canadian citizen. Teachers should have, we would argue, the best possible selection of materials to use in the classroom to take advantage of what is called the "teachable moment".
When you are dealing with young people, situations arise which often must be responded to in a fashion that requires the use of a fairly wide array of materials. We do not have time to consult long lists of organizations from whom we can perhaps access material or get permission to use it. We do not have time to go through red tape in order to find those materials and use them in a way that will be educationally sound.
It was recognized in 1988 that a limited number of reasonable education exceptions should be provided for public institutions such as ours. That has been recognized, we believe, by every minister who has been trying to come to grips with this legislation.
We were told in 1988 that the missing piece was the education exception. The exceptions were to have been provided in 1988 at the same time as the collectives were licensed to operate.
Since then, we believe the collectives have basically had carte blanche in many areas which are treated as exceptions for educational purposes. They are now under the aegis of the collectives.
It is passing strange when the representative of the print collective says that all the amendments passed by the committee were passed after due deliberation and are reasoned amendments, that this bill is the most modern and forward-looking in the world and, of course, that these amendments were necessary.
My jaw almost dropped when Mr. Martin said, "You will hear all of these arguments made by librarians and educators. However, I want to assure senators that nothing will change if this bill is adopted."
If that is true, then we are wasting significant time at the Senate and the members of the House of Commons wasted much time as well. Obviously, we do not believe that nothing will change. I do not think you believe nothing will change. No one wants to pass a bill that is either redundant or preserves the status quo.
I believe that those of us around the table share the feeling that in a number of areas reasoned amendments can be made and that this bill can then be adopted.
As my colleague Sally Brown mentioned, the two ministers agreed with us several months ago that the bill, with its exceptions, struck a reasonable balance between the interests of the creators and the interests of the users.
I should like to address two specific proposals before turning the floor over to my colleague Donna Cansfield.
We have a serious problem with the constraints regarding off-air taping. There was a modification made to the legislation as tabled to delete documentaries from the exception.
There is also language in the bill which, in fact, limits a teacher's ability to tape other broadcasts and make an evaluation of their education utility, because that teacher will not have any opportunity whatsoever to test the program on an experimental basis with his or her students.
We believe that there should be an exception for that purpose that it should be on a one-time basis. We have never argued, nor do we now, that there should be a blanket right for such a purpose. However, there is legislation in other jurisdictions, as referred to by my colleagues, which is progressive and forward-looking on a number of these issues.
The U.S. legislation, I think, is a good example. It provides an opportunity for teachers to experiment with a program on a one-time basis, to make an evaluation as to whether it is something useful for their pedagogical program, and then, if they wish to continue to use it, to obtain the licence or authority or authorization to use it.
In conclusion, senators, we have two specific amendments that we have proposed, but I would also like to raise one last issue before turning it over to my colleague. It is to do with what I feel has somehow been lost by creators when looking at their very legitimate interests in ensuring that they receive fair compensation for the works that they produce.
We teach more than 5 million young students. The more exposure those young students get to a variety of materials <#0107> written materials, visual or art materials -- the more interest they develop in reading. These children are consumers now to a large extent, and will be greater consumers as they enter the work force, of many of these goods. It seems to me that we should be finding ways of facilitating teachers' being able to introduce these materials rather than providing excuses -- and I hear it every day -- where teachers say, "I want to use this, but I cannot. I do not know where to go or how to proceed. It will take me too long to get the authorization or to find out if this is, in fact, something that I can use in order to be able to take advantage of the teachable moment."
That discouragement, senators, I suggest to you, translates into less access -- and less equitable access -- to students across the country.
Lastly, I should like to point out that the licences that do exist for copying material exist from Ontario westward, and we have a huge gaping whole in the Atlantic provinces where no licences have yet been concluded. I would suggest that that is as a result of a conscious strategy, on the part of the collectives which have the monopoly, to agree first with those provinces that can afford to pay and thereby establish the precedents which can then be imposed upon those that perhaps have fewer means to pay the same rate.
I thank you for your attention, and I would turn this over to my colleague.
Ms Donna Cansfield, Canadian School Board Federation: Thank you for the opportunity to appear. I am an elected school trustee, representing students in Etobicoke. That is my responsibility, right and obligation under the law. I am politician, folks, and very proud of it.
I think it is important to recognize that I represent about 16,000 schools across this country, so we are dealing with a great deal of money. I do not throw $10 million around in a cavalier manner. That $10 million comes out of my taxpayers' pockets so I have to be accountable for it. That is in addition to the large amount of money we spend on Canadian content, and proudly so. If you go across this country, you will find that it is a rule of thumb for school boards, when purchasing supplies and textbooks, to purchase Canadian.
We are not suggesting we should not have reasonable access. We have said that all along. We participated in the early discussions regarding this copyright bill because we believed there should be fair and reasonable compensation, and that there should be a balance between those who create and those who use.
We were told that the second phase would restore that balance. I have to question why, after eight years and one month, in the eleventh hour, 120 amendments, on which we did not get a chance to consult, were added and why this is suddenly before the Senate to be pushed through in ten days. What is wrong with this picture? Is this how governments normally fashion fair and equitable legislation, or is it merely political expediency. I think that is a reasonable question. Certainly it is one for which I will be accountable to my own constituency. When you consider the time and effort that goes into legislation, if you are going to pass a law, I would think that you would want it to be the very best law you can possibly pass. I come to you looking for second sober thought, and how can it happen in an instant, when it has taken eight years to get to this point?
Senator Spivak: It cannot.
Senator Forrestall: It cannot happen.
Ms Cansfield: I restate then: What is wrong with this picture?
I hope -- I trust -- that the Senate will give this bill second sober thought and not push it through because it meets some political end.
This is about our children. I represent children from kindergarten to grade 12. They are our future. If you want to talk about fair and equitable access, then let us talk about fair and equitable access for the children. Let us talk about the independent assignments. Years ago, when I went to school, you sat down and wrote your provincial exams and you were gone. Today there is something called independent study. That is an assignment and a test. Currently, I have a son going through that. It is 35 per cent of his final mark that will determine whether he will get into a college or university of his choice. Yet, you are going to penalize him by not allowing us the opportunity to define "assessment" or "assignment" properly.
We are not saying we should not talk about this issue. We are saying quite the opposite. We are quite happy to sit down and discuss a legitimate definition of "assignment" that includes testing and assessment, but we did not even have that opportunity when the amendments went through in the eleventh hour at the end of all the committee hearings. When did we get the chance to say we will help you define that in such a way that it meets the needs of both the creators and the users? We did not.
As a parent with a child in the secondary system and another in university, I know that access to Canadian content is critical. If you do not have the access, guess where you go? You go to other countries, because it is easier. It is quite simple. Is that what you want to happen? That is where you are pushing the students to go.
What about people like myself who have to make decisions on how to spend the money for which we are responsible? Incidentally the money available to us is getting less and less and less because all of you are saying, "Do not raise my taxes."
We are caught in a bind. We must respect the children and at the same time balance the rights of the creators and the users. We are quite prepared to do that. We would like to be a part of those discussions. However, when you ram those amendments through in the eleventh hour and throw the bill through this process, there can be no meaningful discussion. At the end of the day, it is your pocketbook that will get hit, and our children. They are the ones who need the access to this material. I do not think the creators will win at all. The people who publish will win big time. The U.S. companies are just banging at our door, if you read the latest Globe and Mail, because suddenly there is an opportunity they had not quite seen before.
It is important that you step back and take that second sober look at who will use the material, and that will be the students themselves. You must try to find a way for students to use it that is fair and equitable, that provides as much access for the student in downtown Toronto as it does for one in Dawson Creek, B.C. or another in St. John's, Newfoundland. There must be a level playing field. You do not want one child to have more access than another or to have one child penalized because their school board cannot afford to purchase this kind of material and it limits their ability to use it in an assignment.
We are saying to you that there was a promise to restore some fair and equitable rights in Phase II. We worked very hard with everyone in Phase I because we believed the government -- foolishly, maybe. We thought that there was some reasonableness to this.
There is another good example in here that I wrote down because I could not quite believe it. It was, "You can have a reasonable amount of time." Who decides on a reasonable amount of time? What is a "reasonable amount of time"? That is like being a little bit pregnant. There is a point where you need to sit down and discuss this and have some legitimacy around those terms. If not, it is left to interpretation. Whose interpretation is it? Is it the creators or the users or the monopoly of the people who hold the licence? We do not exactly have an open competition here. This is a monopoly. I do not get to sit down and cut the best deal with three or four different companies. I have one. I think that that in itself is unfair.
Having said that, there is some reasonableness for me to say, "Why cannot we sit down and work out some of these terms so that when push comes to shove and there is a disagreement, at least we can go back to what we agreed to before this became law."I do not see that as rocket science and I do not see that as asking for something that is unfair. I see that as asking for something that will limit some difficulties in the future.
In conclusion, I have an expectation here. I have an expectation that you will balance those rights between the folks who create and the folks who use. I hope that in the centre of that deliberation, you will not forget the five million children in those 16,000 schools who use these books. Think about it. You can have used books come into the country, but only used textbooks get penalized for copyright. How many used textbooks do you buy? Not many, I bet, but the students do. Again, you are targeting the kids. Is there a reason for this?
I do not know why this was pushed through as quickly as it was at the eleventh hour except, the cynic in me might say, for political reasons. My expectation from you is that you are that second sober thought. That is the expectation from the students that I represent as well.
Mr. Donald C. Savage, Canadian Association of University Teachers: Thank you for the opportunity to appear here this afternoon.
The Canadian Association of University Teachers represents both creators and users in the academic community. In fact, our members are one of the largest group of creators in the country. There is a tendency to forget that it is not only those in the English departments or in the history departments who write in universities but also the scientists, engineers, mathematicians, and people in the medical faculties. It is important to our members that a copyright law looks after the interests of all these various communities within the university.
When Phase I was passed nine years ago, CAUT appeared before the Senate and supported it because we thought it was right to create collectives and to provide the other measures of support for the creative community in Canada. We were assured at that time, and subsequently by virtually every minister since that, that there would be a Phase II that would provide reasonable concessions in terms of the educational and library worlds. We simply do not believe that Bill C-32, as amended, does that.
The creators in the academic community, like all creators, are very much opposed to any arrangements which would allow large-scale, multiple copying of their works. In that case, the copying should be paid for, and that is the major source of revenues that would come from the copyright regime applied to the university sector.
Our members do not believe that the copyright legislation should disrupt scholarly and research activities or put unfair restrictions on the use of libraries. It should ensure that our members have the possibility of a level playing field with their competitors in the United States, Australia, the United Kingdom and New Zealand in particular.
We support the specific amendments that the Association of Universities and Colleges of Canada have put forward but we have suggested some additional amendments in our brief as well. I wish to deal with one that the AUCC also supports. This concerns criminal sanctions in the legislation.
We agree that there is a need for criminal sanctions to deal with commercial pirates. We do not think people should be able to make large-scale profits out of breaking the copyright law. That is why we think that there should be a provision in the legislation. However, we consider the provision as written in the law to be overly broad. It applies criminal sanctions to virtually any infraction of this legislation, however trivial. We believe that the criminal law should be restricted to truly serious matters. In other cases, those who break the law should be brought to civil justice, not criminal justice.
If one uses the criminal law to enforce relatively trivial matters, one brings the law into contempt. One encourages over-zealous local police forces and collectives to use that as a basis for action against universities for intimidation or perhaps for creating a chilly climate in the university.
The direction that the proposed American legislation is taking is the right way to go. That legislation provides that a criminal infringement is undertaken only "wilfully and for purposes of commercial advantage or private financial gain and only if there is a value of more than $5,000 involved in the particular case". Otherwise, the infractions would be treated under civil law.
In our brief, there is a quotation from Jeff Berryman, former Dean of Law at the University of Windsor, who supports the American approach in the matter of criminal sanctions; and also a quote from the late Gordon Henderson. He wrote this before Bill C-32 appeared. He stated:
I believe that the pendulum has swung too far and the criminal law remedy is already being abused. For one thing, the criminal law has no place in institutions where there is no obvious commercial activity. The illegal copying of computer programs by well intentioned but misguided individuals within an educational environment may be reprehensible and illegal from a civil standpoint. However, it hardly ranks, in my view, with other serious commercial or property crimes that can draw such severe punishment. It is really a civil matter. Some of the recent spate of apparently draconian police actions may stem from over-zealousness and enforcement. On the other hand, perhaps the law is too broad in its purview of what constitutes criminal behaviour. Where the criminal law is too draconian, either in principle or in enforcement, the courts will tend to be reluctant to give it full force and effect in the long term.
I have several other things about criminal sanctions. It is interesting, for instance, that patent law does not rely on criminal sanctions for the enforcement of patents in this country. In terms of the use of criminal sanctions, we find that it is the book publishers and the film industry which rely on criminal sanctions but not the music industry through SOCAN, which very rarely if ever goes down that track.
We strongly believe that you should take action to ensure that clause 24 should be amended to ensure so that no charges shall be laid pursuant to sections 42(1), 42(2), and 42(3) unless
(a) there is evidence on the balance of probabilities that the accused had a wilful intention to trade for direct financial gain or other fraudulent intent to infringe copyrights, and
(b) the value of the alleged infringement exceeds $5,000.00.
It has already been pointed out to you that if you were to make a copy of a MacLean's magazine article from last week to use in the preparation of a speech or something like that, you would be committing a criminal act. That seems to us to be absurd. It simply underlines what some of my colleagues have said for the necessity of sober, second thoughts about the scope and application of this bill, not about the fact of this bill. We supported Phase I and we wanted Phase II, but we did not want it in the terms that it has come to us.
The second item I should like to address is the question of used texts. In general, we do not understand why parallel importation has found its way into a copyright bill. It seems to us more properly to be part of a trade regulation bill. However, it is there, and I want to deal with the specific case of used textbooks of a scientific or scholarly nature.
With the addition of those words, it is quite clear that this is aimed directly at university students. It was a last-minute amendment. There was no consultation with the national student organizations or with the university administrators before this was brought in. There was no independent study by the government. It simply appeared, and it was put through without the possibility of serious debate or discussion. That seemed to us to be outrageous.
New textbooks in Canadian universities can be expensive. For science and engineering students, they can cost up to $1,000 a year. From the point of view of students, that is a significant amount of money. It is quite important from their perspective that the market in used textbooks not be artificially restricted by the passage of this particular section of the bill.
I understand that you have been told this bill will not in fact be put in force and that we have nothing to worry about because the minister and subsequent ministers will never use this power. If they will not use this power, why is it in the legislation? It seems to me that you only pass laws if you have a problem to solve and an intention to use the legislation to do something about it.
The second premise of that assurance is that we should trust the bureaucracy in Heritage Canada. We saw what the bureaucracy in Heritage Canada acquiesced to in terms of rushing this amendment through the House of Commons committee without consultation, presumably under pressure from someone else. We feel fairly confident that those pressures will be renewed to ensure that there will be, in fact, application of this piece of legislation if it is passed by the Senate. We would strongly urge you to amend this legislation to eliminate this unfair and last-minute application of the law to the importation of used textbooks of a scientific or scholarly nature.
In conclusion, I should like to echo what all of my colleagues have said. We believe that the amendments that were rushed through the Commons committee and that appeared at third reading were not in fact amendments that were discussed or debated with the stakeholders in the university community. We appreciate that the Senate is now giving us a chance, which the House of Commons was not prepared to give us, to discuss with you our concerns in these areas. We hope that you will find that these concerns are reasonable, rational, and legitimate, and that you will exercise your role as the house of sober, second thoughts to amend this legislation so that when the act finally appears, it will achieve the balance which various ministers have said they have wanted to achieve in the first place.
If the House of Commons can pass 76 amendments in three hours, it should be possible for the Senate to adopt half a dozen amendments in 10 days in order to make this a much better piece of legislation. Thank you.
Senator Kinsella: I am not sure whether today will be the last time Dr. Savage will be appearing before a Senate committee in his capacity as executive director of the CAUT .However, if it is, let me put on the record the deep appreciation of the various Senate committees to which he prepared and provided invaluable assistance as I and my colleagues have examined legislation. I understand that your term may be coming to a conclusion after many great years of service.
Each morning we receive here a publication called "Quorum". Senators are quite familiar with it. It is a collection of articles that are photocopied. For instance, this is today's, and the first page is from the Globe and Mail, the second page from La Presse, et cetera.
If this bill passes, what is the legal status of this product produced by the Library of Parliament, Information and Technical Services Branch, and distributed to Parliamentarians and others?
Ms Brown: I suspect it will be illegal. The Government of Canada does have a licence with CANCOPY. I do not know the terms and conditions of that licence, but multiple copies of printed material from newspapers for distribution require the payment of a royalty unless the newspaper chain has a policy which accepts that. I do not know the current status, but one of the large chains has said, "In the public interest, we do not wish the collectives to accept any royalties for us, and do not do so. We wish the material to be disseminated." We believe we should not have to rely on the whims of various publishers as to whether or not current material can be used by people in a not-for-profit way.
Senator Kinsella: Dr. Savage, did you bring the issue of criminal sanctions to the attention of the House committee examining this bill?
Mr. Savage: The AUCC and CAUT wrote a joint letter outlining a series of objections, and one of those objections was to criminal sanctions.
Senator Kinsella: As I understood your argument, you drew our attention to patent legislation, which is analogous, perhaps, to copyright legislation, and the fact that patent legislation, on the sanction side, provides for a civil sanction. You sue someone if they steal your patented product.
In this instance, in the bill now before us, the sanction would be criminal. Could you explicate that by a practical example you would see affecting university professors across Canada?
Mr. Savage: Yes, indeed. There was a case at the University of Ottawa not so long ago where the copyright collective alleged that a copying store was violating the law.
They persuaded the police to bring criminal sanctions against the store. There was every intention, I think, of bringing criminal sanctions against the professors. That did not materialize, perhaps because the case against the store was finally lost.
It is clearly a live issue, in terms of the copyright collectives, that they intend to use that power and have used that power. It does mean that all the parts of the legislation can be enforced that way.
It is also important to remember that the collectives cannot give any legal assurance, just because you happen to have a licence, that you will not be subject to criminal sanctions, because they cannot prevent third parties from invoking the criminal law themselves. It is one of those areas where signing a licence with a collective does not give you immunity from criminal sanctions.
Senator Kinsella: It was my understanding from the testimony of the representative of the community colleges that you also represent the CEGEPs. Is that correct?
Mr. Killeen: That is correct.
Senator Kinsella: Do the CEGEPs in the province of Quebec wish this bill to be amended along the lines which you have outlined, which would have the effect of restoring the bill to the pristine state it was in when it was first introduced with the enthusiastic support of the Government of Canada?
Mr. Killeen: We have not been back to the Fédération des CEGEPs, which represents the presidents of the Quebec CEGEPs on the provincial level, concerning our appearance today. However, we do have a letter from them endorsing our position vis-à-vis Bill C-32 as it was before the House of Commons committee on heritage.
We are saying today that we should go back to that. If we infer anything from that situation, it would be that they would not be too adverse to what is transpiring here today.
Senator Kinsella: Is la Fédération québécoise des professeures et professeurs des universités du Québec in support of your position?
Mr. Savage: Yes, they are.
Senator Spivak: You commented quite adversely about the process that was used to put the amendments through at the last minute. However, it seems to me that those amendments must have been contained in the briefs of other presenters. Are you suggesting that these amendments sprang out of the forehead of someone on the committee or the bureaucrats in the department?
Ms Brown: As far as the people who were witnesses in the process were concerned, many of the amendments came out of nowhere. They were not discussed with anyone. They may have come out of Heritage Canada. A few of the amendments came out of Industry Canada, and they were quite open about what amendments they were bringing forward.
Of the amendments were are discussing, 76 of them came forward in three hours. They were coming forward even before they were drafted. Many parliamentarians to whom we spoke said that they had never seen anything like it.
Senator Spivak: Are you saying that almost none of those amendments came from other interest groups? We heard from the writers just before you, and they said that they would like clauses 30.2 and 39.5(a) amended. There are different positions here.
This is a very unique situation for us to be in because it is truly impossible for us to evaluate these exemptions in the time we have been given. I am puzzled about the origin of those amendments and about why they were presented in that fashion. If the bill was in place for a year, it seems to me that they could have been presented earlier.
I can understand about the amendments from Industry Canada, but what other amendments were presented by Heritage Canada?
Ms Brown: For example, with regard to the removal of assignments, in several cases we could not find out who had proposed them, so we have to assume that they came from the department.
The amendments were not even read out loud. It was simply asked, "Do we agree with amendment number 37?" The committee members then all put up their hands. The people in the room had no idea what amendment they were talking about. We believe that to be a faulty process.
Mr. Savage: A good example was used textbooks of a scholarly and scientific nature. That came out of the blue. We had no advance warning that anyone would propose that as part of copyright legislation, and neither us nor the students had an opportunity to discuss it.
Senator Spivak: Your position is that most of these amendments will not assist the creators. Who will they assist? That is not exactly the point of view of the writers who appeared before us. They seemed to think most of these amendments would be beneficial to them.
Ms Brown: Are you referring to the new amendments?
Senator Spivak: The bill as it stands now, except for a few. They seemed to believe that the bill, as amended, would be beneficial to them and not just some multinational corporation or whatever.
Mr. Savage: Obviously, the amendments will benefit writers to a certain extent. It is our view that they will benefit publishers and, more particularly, the North American film industry much more significantly.
Senator Spivak: They do not need any more benefits. They already have most of the market.
Ms Cansfield: When an amendment is dealt with by number only and no context, it is very hard to respond to it. If we knew the content and it was not palatable, we could have at least asked for a compromise. For example, with the issue around assignment, we recognize that this has happened in New Zealand, Australia and the United States and that there are special considerations for that. We would have liked to at least discuss this. We did not even get to that stage because it was a done deal. They rammed it through right at the end. That process is flawed. Who wins in this?
If you have the opportunity to purchase material more cheaply elsewhere, where will you go? Eventually, you go to where it is cheaper. The taxpayer is not a bottomless pit and it is foolish to think that it is. To find compromise and work together toward solutions would have been a far more palatable way to deal with this than the process followed right at the end.
Senator Forrestall: Perhaps someone could tell us who moved these amendments.Were they moved by the chairman?
Mr. Savage: They were moved by government members.
Senator Forrestall: They were moved by various MPs who had apparently been given a series of amendments to move?
Mr. Savage: That is correct, yes.
Senator Spivak: Were they voted against by all the opposition parties?
Mr. Savage: No. The opposition parties were divided.
Senator Forrestall: They took a given number. Do you suppose if we went back into the due diligence issue, we could find a debate, at least in the committee?
Ms Cansfield: Yes, absolutely.
Senator Forrestall: They were discussed in committee?
Ms Cansfield: If you went back, you could find the debate on the amendments but they were not discussed. That is the issue.
Senator Forrestall: They were discussed at the time of voting?
Ms Cansfield: They were moved, seconded, and voted.
Senator Forrestall: That might have been a procedural way of dealing with 100 amendments. When you read off that many amendments, you could be there until 2 or 3 o'clock in the morning.
If these amendments have each been discussed in the committee over a period of weeks before that, the members would know.
Ms Brown: They were not discussed.
Senator Forrestall: I would know from the discussions which amendments I wanted to support and which I chose not to support. I do not believe in bad law and this is bad law.
I also have the great fear which many of us have that, if we move one single amendment, it will be held up somewhere and that we will not see anything. Can you imagine the plight of a minister of Heritage Canada down the road, shortly after being nominated to that high office, going into work and having an associate deputy minister come in and say, "Good morning, Minister. Today we start on copyright law. What do you think of that?"
The minister might go immediately to the Prime Minister and ask to be a parliamentary secretary somewhere or to chair a committee so he or she would not have to deal with copyright law.
In trying to be fair, if these 75 amendments were debated and were serialized then --
Ms Cansfield: There was no debate.
Ms Brown: You will not find it in the record.
Mr. Killeen: If there was discussion, it took place in the back rooms.
Senator Forrestall: When I was over there, we used to say they were acting like trained seals; they were given amendments and they moved them.
Mr. Savage: The used textbook issue, as far as I know, was never discussed anywhere in committee. That issue was a completely new thought which appeared at this stage of the legislation.
Senator Forrestall: On four or five occasions I asked my brother about this bill coming forward and he said that he had heard nothing about it at all. Then again, he is just a painter; he would not be expected to know very much about it, would he?
We have a dilemma and a serious one. It is a matter of very deep regret on the part of many of us. We do not have two or three weeks to sit down and sort out the validity of your argument. You do make so much sense. It is totally absurd to be dealing with a matter which came to us without the benefit of any public exposure or debate.
We are not debating. We cannot draw our friends into a debate. They have gone mute.
Senator Watt: Speak for yourself.
Senator Forrestall: They have not had anything to say all day.
The Chair: You should be more respectful of your colleagues.
Senator Forrestall: They want the bill to go through.
Mr. Weiner: I would hope that senators share with me this concern. A bill is introduced by two ministers as a fair and reasonable compromise after 10 years of negotiation, discussion, et cetera. Within a matter of weeks, the number of amendments that we are talking about are being pushed through. The minister comes to this committee -- and I was here yesterday -- and says that what we have here is a tapestry and, if you touch one thread, the whole thing will unravel.
Senator Spivak: It is called a seamless web.
Mr. Weiner: I did not want to mention the former Prime Minister's name.
Ms Cansfield: It is important to recognize that, senator, and I appreciate your perspective. It has been a long haul. Again, it is my expectation that if you are to pass a law, then make it a good one because it will be around for a long time. Heaven forbid, if it takes another year, I would rather have a good law than a flawed law that will put us in the courts. That will cost all of us a great deal of money. Those are dollars that will not be spent in the classroom.
With all due respect, if the Minister of Canadian Heritage has to go back to copyright law, so be it. That is her job.
Senator Kinsella: Hear, hear!
Senator Spivak: I should have asked this of the writers and the others, but I did not. When the bill went to committee, were most of the stakeholders satisfied with the bill? Were the writers satisfied? Were the creators satisfied? Were the small publishers satisfied?
Ms Brown: It is fair to say that there is a certain core group of the creator community who believe that there should be no exceptions whatsoever. With a certain core group of the creator community, there has never been any compromise. The educational and library community have been told for 10 years that they should make the compromises.
We have consistently said that there is no common law jurisdiction in this world which does not have exceptions for educational and library use. Copyright law is about access as well as protecting the rights of creators.
As Mr. Savage has already said, we are talking here about creators in the academic community. The educational and library exceptions are not for the for-profit sector. It is true; there has been an incredible intransigence.
All the while, the educational and library users have become licensed. In fact, the collectives have targeted the not-for-profit sector to be licensed and we are all licensed. That has never undermined the importance of exceptions in every single jurisdiction that deals with these issues. It has been a frustration and very much so.
Senator Johnson: Many of my questions have been answered. I just want one more clarification. When I asked the writers about amendments that they had brought forward to the committee, they said that some were heard and taken into consideration. However, two of the critical ones they wanted were not.
You are saying that there was just a sort of role call of numbers. Did anything that you presented get absorbed into the bill and the legislation?
It sounds as if they just read off one after another and everyone approved them with no discussion. Was there anything incorporated which was presented by you?
Ms Brown: In the initial days of the hearing, representations were made and there were discussions of various amendments by interested parties. However, at the end this sort of role call occurred.
This started out as a process which people took seriously. A number of briefs were brought forward and shared with other witnesses. Frankly, it degenerated so that, yes, certain amendments were known. Both parties felt that certain amendments had gone through with some discussions.
As Ms Cansfield said, at some point it became a mêlée. In the end, the creator groups were happy and we were not. It is fair to say that the balance was lost on the side of the creator groups, literally overnight.
Mr. Savage: We could only see two amendments that were in any way favourable to us.
Senator Forrestall: If I might ask, who moved the two amendments?
Mr. Savage: They were government members for all amendments.
Senator Spivak: Again, I guess we should be faulted because I did not see this coming. Normally, we get a chance to review public policy. One of the reasons we get that chance is because there is advance information from various groups. In this case, we did not get much advance indication that there was some difficulty with this bill. The information we received was that it was a well-balanced bill.
We all want to advance the case of copyright. However, suddenly, we received a whole stream of letters. The writers say that at the push of a button, you can get 300 letters. We cannot do that.
The process bothers me. I have already expressed that. It is not a way to go into public policy. A balance is a balance, but not between a multi-national on one side and small writers and small publishers on the other. That is not a balance. I am wondering why we are not getting more.
You are saying that that balance is there for the creators and the small publishers, although I do not see it. Where the balance has been upset, if I can summarize it, is in the interests of users such as students and academic institutions, which you are suggesting are not just users but creators as well. Is that a fair summation of what you want us to take away at this point?
Ms Brown: Yes.
Senator Kinsella: I share your view that the Senate has been forced to deal with this awful mess. The attempt to force us to deal with it without due time for serious consideration is approximating a scandal. However, it is necessary sometimes for us to see where we can be creative.
I intend to move the kinds of amendments that you and other witnesses have brought forward in the area of education. I must limit myself to this area because I have limited experience. I do not understand the broadcasting parts and the other parts of the bill. If I had a month to deal with this bill, my research staff and I could perhaps get into the bill and understand it better. However, if we are under the gun to deal with this bill, we will attempt to advance those kinds of amendments, which will be friendly amendments.All I would be moving would be to restore the bill back to the state it was in when it was introduced and supported by the government. I would consider that a friendly amendment. If that fails, it will only fail because of the brute power of numbers. In this place in the last while, the dynamic of might making right seems to be gathering some favour.
I ask you to turn to page 93 of the bill. Under Part IX, "General Provisions", clause 92.(1) provides that "within five years after the coming into force of this section," the minister shall table a report in both Houses of Parliament on the operation of the act, including any recommendations for amendments.
When I look at the phrase "within five years", it seems to me that means that we could start that process immediately. If the government were open to a recommendation from the Senate to use some creativity with that clause and to deal with issues that you and other groups have raised, would that in any way constitute a fallback position?
You will lose it all if they use their numbers. You can all count. There are more of them than there are of us. They can bring in the guillotine, which they have done on other bills where there is absolutely no science to support them.
Is there anything we might do under clause 92.(1) to secure a commitment from the government in exchange for our support for this terrible piece of legislation?
Mr. Killeen: As we sit here, the copyright process is being driven on the international scene at the World Intellectual Property Organization. There are many things going on there where, oddly enough, the only people who speak to the interests of our constituencies find themselves in the United States. They are well-organized user groups. They will be our allies in the next battle, and this battle is going on now.
You know how important this is. This has a purpose. Given our inability to influence the legislation or the public policy agenda today, our association has no hope that in five years' time this will be rectified.
I was not involved in this in 1988, but a fundamental mistake was made when we decided to bifurcate the process and said, "We will deal with the creators now and the users later." What has happened in that space of time is that copyright has become big money. This is being driven by Disney and by ABC. There is a lot at stake here.
Our institutions are sitting ducks because we are public. Police can come into our libraries and stand at the photocopiers. They can go into the classrooms. There is no public outrage about what is going on here now because we do not yet have the means to invade someone's privacy in their home to find out what they are doing with their copyrighted material. However, that will come soon with technology. When it does, that is when the Canadian public will wake up to what is going on here.
Ms Cansfield: I should like to ask a question of Senator Kinsella. My understanding from what you have just stated is that the appearance here before you is useless and redundant and that, as a Senate, by shear number, you serve no useful purpose in terms of reviewing inappropriate laws.
Senator Johnson: No.
Ms Cansfield: I hope not. I should like to think that the people sitting here are not representative of a particular partisan group of folks on the hill and that they actually are here serving the needs and the interests of all the people. Is this just a rubber stamp?
I do not look to the people around this table to simply rubber stamp what is happening on the hill. I actually expect, and I believe my students expect, a whole heck of a lot more out of these people. If not, this is a sham.
The Chair: I must say a few words about that. I am trying to be impartial and neutral.
Senator Kinsella said that we are under the gun here. That is not true. We had the proposed hearing schedule approved by all members on both sides of the committee. Everyone agreed with the calendar which was presented. We even added someone proposed by Senator Kinsella to the hearings scheduled. We will add some more if need be.
If you feel you are naive, I am not. Neither are you. Both sides are doing their job as properly as they can.
I have refrained from making comments for a while, but I must make that comment. We would not be here if we did not want to do a good job. That is what we are here for today.
Senator Kinsella: Madam Chair, when do you propose that the hearings will conclude? I have a document in front of me which says that there will be hearings on Wednesday, April 23, at 3:30 p.m. and 7:30 p.m.
The Chair: No, that is not right.
Senator Kinsella: I will table the document.
The Chair: The Subcommittee on Transportation Safety was to go to Washington. There are some members of this committee who are also members of that subcommittee. We decided that we would stay here and send your colleague, Senator Forrestall. I am sure you would not want to prevent him from going to Washington. Our colleague, Senator Adams, is attending with Senator Forrestall.
The French version of the schedule was prepared by the Clerk. We worked on another schedule with the panels that we have. If we have to sit until midnight every night, I am willing to do it.
Senator Johnson: You have not addressed the question asked by the witness.
Senator Spivak: Are we listening with an open mind?
The Chair: You can go back to what I said yesterday.
[Translation]
I will speak in French as this is easier for me. I want to come back to what I said yesterday. We fully intend to listen to the panel members and to learn along with you.
[English]
We will keep an open mind. That is what I said yesterday. We must know more about this bill. That is why we have the groups coming here before us.
[Translation]
That is why the committee listens carefully and analyses every request it receives. If we have to sit until midnight every evening to consider these requests, then we will do so.
Senator Pépin: I would like to make a comment in response to these remarks. On listening to you, I have the impression that you are engaging far more in politics and partisanship than some of us here. We are here to listen to you and to try and help you pass sound legislation. After listening to you this afternoon, I have the impression that you are far more political than many of us.
[English]
The Chair: Are there any other questions?
Senator Johnson: Madam Chair, I should like to make one comment about the remarks of our witnesses. I have been in the Senate seven years. I am a person who has given serious consideration to many issues. I have always voted according to my conscience, regardless of whether it was a partisan issue or not. Many senators do the same. If you are thinking this will be just a political decision, no, I do not think so. Sometimes it is. That is the reality of life.
I can only speak for myself. I always come, as do many of my colleagues, with an open mind. I am hoping my friends opposite will do the same on this issue that is before us today.
Senator Forrestall: We understand sometimes the flesh is weak.
[Translation]
Senator Poulin: I would like to thank Senator Johnson for his comments. I think that you have raised an important point in the sense that at times, perception does not mesh with reality. The reality is that we are just back after spending one week in our regions. All of the committees have been very active and most senators sit on more than one committee. This has to be said. Most of us have been attending various meetings since 7 o'clock this morning and as our chair stated, we are prepared to sit until midnight if we have to.
I think we are very open and our objective is to ensure that each piece of legislation truly represents the balance that is sought by all Canadians, a balance that will genuinely contribute to helping our country move forward.
This legislation has a rather unique history. Most members of this committee have been associating with many of you and with many other groups for the past eight to ten years. Therefore, we are quite aware of your interests and the issues at stake here.
Last week, this committee considered another bill. We felt that in order to protect the rights of all Canadians from coast to coast, this legislation warranted an amendment. Obviously, our colleagues in the House of Commons were not pleased.
Therefore, we take the time to consider each piece of legislation and to weigh all of the risks. That is our job and I think that senators from both parties take this responsibility very seriously.
[English]
The Chair: Are there any other questions on the bill?
Senator Spivak: Madam Chair, this is an important discussion. We all know the realities here. We know at times what takes place. I am glad to hear the comments of senators opposite.
The Chair: I thought you already knew.
Senator Spivak: On the record, it is much better.
Mr. Savage: If I may, Madam Chair, following on the remarks of Senator Poulin, it seems to me that it would be possible for the Senate to do in this case as it did in the legislation that you mentioned -- that is, adopt a limited number of amendments, pass them here, send them to the House of Commons and put the legislation through before an election is called. I say that half in jest, namely, if you can pass all these amendments in three hours in the House of Commons; but not entirely in jest. It certainly could be done, if there was the will and an understanding of the dilemmas and problems the legislation as it is now amended will create for the educational sector.
I say, perhaps in part to Senator Kinsella, that even if it is not possible for your amendments to be debated in the House of Commons and brought back here, we think it would be better to let the bill die and to revive it when the House reconvenes in the fall. Why is that a catastrophe? It seems to me that it is better to have a good piece of legislation than to have a bad piece of legislation. If it happens in September instead of April, I do not see that the world will come to an end because of it.
The Chair: Thank you very much.
Ms Brown: Madam Chair, you should know that the educational and library communities have worked together on the copyright bill from start to finish. While there may seem to be a list of amendments in front of you, there are two or three amendments which, together, we would support. We could make your job easier, if you truly wish -- and I have heard that that is your wish -- to make amendments to the bill to make it stronger and to have the sober second thought. We can then work with you to shorten that list and to propose one to three amendments only to which you could devote the time, ask the questions about and assure yourselves that they are in the public interest. They are not in the interest of some educational and library lobby group. We work for universities, colleges and in the public interest.
We speak for the entire community. The francophone university members of AUCC feel as strongly if not more strongly than any of our members on the sorts of exemptions that are needed in the educational and library community.
The Association of Universities and Colleges of Canada can help you do your work, should you so desire.
The Chair: We have other groups to hear as well. Thank you very much.
We wish to welcome representatives from the Patent and Trademark Institute of Canada-Canadian Bar Association Joint Copyright Legislation Committee.
Please proceed.
Mr. Glen A. Bloom, Patent and Trademark Institute of Canada-Canadian Bar Association Joint Copyright Legislation Committee: Thank you, Madam Chair. With me today are Mr. Bernard Mayer and Ms Marian Hebb, who are both members of the joint committee and are with me to join in this presentation.
The PTIC is an association representing over 1,000 persons in Canada specializing in matters pertaining to intellectual property. We are here to present to you the brief of the joint committee as approved by the executive of the PTIC. In the short time available, the brief has not received CBA approval. The brief therefore represents only the views of the joint committee endorsed by the PTIC.
The joint committee has studied Bill C-32 in detail. The joint committee confines itself to commenting on technical matters. It is not the role of the joint committee to address matters of policy.
We are appearing today to discuss with you certain concerns that the joint committee has with respect to the amendments to Bill C-32 made by the House of Commons, and to answer any questions that you might have of us.
In answering any of your questions, we may be obliged to refrain from addressing policy matters that are not within our bailiwick of consideration.
I will now turn to Bernard Mayer, who will provide you with background comments on Bill C-32. We will then expand upon our written brief on three areas of concern: First, the term of copyright in unpublished works; second, copyright and authorship of photographs; and third, the effect of new rights created by the bill on pre-April 25, 1996 contracts. Our brief does address other matters of a highly technical nature. We would be pleased to respond to your questions but will make no formal presentation on those points.
Mr. Bernard Mayer, Patent and Trademark Institute of Canada-Canadian Bar Association Joint Copyright Legislation Committee: The bill is very complex legislation which is inevitable because of the complexity of the subject and the interests of rights holders and users which it affects. It was inevitable that it would give rise to significant controversy. International experience clearly indicates that an uncontroversial major copyright law revision bill is a contradiction in terms. In other words, what you must realize -- and I am sure the committee realizes this by now -- is that copyright cuts across a whole swath of interests. It is a bit like the income tax bill. Within each of these areas there are conflicting interests, and I think it has been the policy of Canadian governments, irrespective of party, not to want to address issues that are controversial in private legislation if they can help it. However, in this situation, it just cannot be helped.
From a practical perspective, the bill does represent a fair attempt by the government to come up with a balanced bill. Whether the government has achieved that objective is for the committee to judge. This is very much a matter of policy on which our committee has really nothing to say.
The joint committee considered the bill when it was introduced into the House of Commons and presented a very detailed brief on the various sections, and that brief has been filed with the committee.
The bill was very extensively amended at the report stage and the amendments addressed some of our concerns, although in our opinion the wording of some of the relevant amendments does not entirely achieve the desired objectives. As Mr. Bloom said, in our brief to this committee we have merely addressed the House of Commons amendments and we have not attempted to rehash the overall story.
If the bill were passed without amendment, then I think certain very practical considerations should be born in mind. This bill is not an overall comprehensive copyright law revision bill. Quite apart from the obvious drive for changes to copyright legislation which are occasioned by this technological revolution we are all living through, there are areas which this bill does not tackle. Remember that there has been no major overall revision of the Canadian Copyright Act since it was introduced in 1924, so further progress with copyright legislation on an overall basis is highly desirable.
I do not know what government will be re-elected or elected, but I think it is reasonable to foresee that there will be further copyright legislation well within the five year time frame provided by the sunset clause. Moreover, there may be opportunities to deal with purely technical amendments. For example, it is reasonably well known that there is an intellectual property improvement bill being considered by the government which is supposed to deal with relatively uncontroversial matters. That may be a vehicle to do it. In addition, if some provisions are considered impractical, the bill provides that it could be proclaimed clause by clause so another alternative is not to proclaim certain clauses. From a practical perspective, whether or not this bill should be passed is a matter of policy, on which we have nothing to say, but we think as a committee that the technical problems which remain in this bill are not sufficient to impede its enactment.
On the business of whether amendments should be made by this committee, that, again, is a policy decision and we all know an election may be called, and how that all interacts is not for us to opine on. That is our introductory statement.
Mr. Bloom: Mr. Mayer, would you turn please to the first specific issue we wish to address? It is the term of copyright in unpublished works which you will find at page 5 of our brief.
Mr. Mayer: Let me explain what this is all about. At the present time, there is no restriction on the term of copyright in works that are unpublished. That has become a somewhat controversial subject and the bill, as it was introduced into the House of Commons, abolished the unlimited term for copy of unpublished works and subjected it to the general regime for copyright term which, in the basic principle, is life plus 50 years.
The bill as introduced into the House of Commons contained a provision that if the person died within 100 years of the coming into effect of the bill, there was a 50-year term from the date of the provision coming into force. If the person was dead more than 100 years, the term was five years. The House of Commons made an amendment reducing the periods to 50 years so that the 50-year period only applied if the person died within 50 years. If it was more than 50 years, then the term would be merely five years from the coming into effect of the bill.
To illustrate that by practical example, that would mean that if the bill comes into effect on January 1, 1998 and author "A" dies on January 1, 1948, the copyright in an unpublished work would expire on December 31, 2048. If he died one day earlier, the copyright would continue for another 50 years. We think that that cut-off point is much too blunt. There should be some kind of gradual phasing in of the shorter term of protection.
Why is 50 years important as distinct from 100 years, when people are well and truly dead? After 50 years, relatives may still be alive, or other people who may be consulted, and there may be a very good reason for retaining the term. This is one of our concerns.
Mr. Bloom: I will now address our concerns with respect to the term of copyright and authorship of photographs. You will find our written comments on page 6.
Let me start out by reminding you of the current provisions in our legislation. Currently, and in summary form, the act provides that the author of a photograph is the owner of the initial negative at the time that the photograph is taken. The term of copyright currently in the photograph is 50 years from the end of the calendar year in which the initial negative was made. The author is the owner of the negative, which may be someone other than the photographer; and the term is 50 years after the initial negative is made.
Bill C-32 was amended in the house to provide a new regime for both the term of copyright and authorship in photographs. Clause 10 of the bill creates three different regimes or three different categories of photographs. The first category would be photographs where the owner of the initial negative is a corporation. For that photograph, the term of copyright is 50 years from the making of the initial negative.
The second category is for photographs where the owner is an incorporated photographer -- that is, an individual who has created a company and then makes the photographs under the guise of the corporate entity. In that circumstance, the term of copyright is 50 years after the death of the photographer or the true author.
The third category is for photographs where the owner is an individual -- that is, the owner of this initial negative. In that circumstance, the term of copyright is 50 years after the death of the individual, and that individual might be someone other than the photographer.
Clause 10 gives rise to several difficulties. In summary, these difficulties arise because the section does not address the issue concerning who is the true author of a photograph except in relation to the incorporated photographer.
For photographs where the owner is an incorporated photographer, the section is not complete. Although true authorship is identified, the provision does not address circumstances of anonymous, pseudonymous and posthumous works.
Further, for an incorporated photographer, the author is based on the traditional authorship criteria and the term is dependent upon the identification of the author. On the other hand, for a photograph taken by an unincorporated photographer, the authorship is determined by the ownership of the negative at the time the photograph is taken. This owner may be a person other than the photographer, as would be the case where the photograph is taken using a camera borrowed from another person and that person owns the negative at the time the photograph was taken.
As we have indicated in our brief, the trend in other countries is to abolish any special rule for identification of the author of a photograph and to protect photographs for the full term -- that is, the general rule of life plus 50 years.
I will now ask Mr. Mayer to convey to you our comments on the last substantive area in our brief, which is the provision on the effect of new rights created by the bill on the pre-April 25, 1996 contracts, which appears at page 12.
Mr. Mayer: This section was added by the house on third reading and it causes us a good deal of concern. It provides that no agreement concluded before April 25, 1996 -- that is, before the date the bill was introduced -- that assigns or rights or grants an increase in a right that would be a copyright or a right to remuneration under the act shall be construed as assigning or granting any rights conferred to the first time by the act, unless the agreement specifically provides for the assignment or grant.
The bill creates a number of new rights. This clause says in effect that with regard to contracts before that date, unless those rights are specifically referred to in the contract, they were not assigned by the contract. It is obvious that this proposed section was brought in as an attempt to protect the position of individuals who acquire new rights as a result of the bill and who may have signed agreements assigning their rights to others in very general terms at a time when they were unaware of the possibility of new rights being granted. That sounds like a laudable objective, but it gives rise to other serious practical problems because practical problems arise from the way the business world works. This is not an unusual problem per se and there is a strong tendency concerning how this is dealt with in the business world.
In our view, the provision ignores the commercial reality and is an unjustified interference with contracts. Contracts of assignment of copyrights frequently contain general language. It is well established that it is a matter of interpretation in each case to which the general rules developed by the courts for the interpretation of contracts apply.
As to the extent to which general language applies not only to circumstances which existed at the time the contract was executed but also to future developments, the effect of the provision will be to interfere retroactively with business bargains under which an assignee or grantee has acquired all the rights of the assignor or grantor, irrespective of future developments. In other words, in the business world there are frequently assignments executed which are in such wide language that it is specifically intended that they cover everything that may arise in the future.
Whether or not that was the appropriate interpretation of a particular contract should be left to the courts to decide and should not be arbitrarily imposed by legislation. It should be noted, moreover, that this provision is not limited to contracts which are governed by Canadian law.
In our view, there is a serious risk that the provision would be construed by a Canadian court as applying to all Canadian copyrights irrespective of whether the assignments or grants are governed by Canadian law. As a result, a highly undesirable situation may be created under which contracts governed by a foreign law may be construed differently, depending on whether the suit is brought in a foreign court which may disregard the provision or a Canadian court which may apply it.
In other words, if a contract, for example, is governed by the law of California and is interpreted in a California court, the California court may say the California law governs and this provision should be disregarded. If the same action is brought in Canada, the Canadian court may say this is a specific provision in the Canadian Copyright Act and that provision governs.
I could give some examples of how this clause might work. However, as a practical matter, it may simply defeat normal commercial expectations. It may also, as a practical matter, require checking a good many documents when a deal is made, with uncertain results, to determine where you get the rights from.
Mr. Bloom: That completes our formal comments to you. We thank you for the opportunity to present our brief and oral comments to you. We did, however, wish to leave you ample opportunity to ask questions, and we would be pleased to entertain your questions either on the highly technical issues we have addressed in the brief other than the items we have specifically indicated in our oral submissions or the points we have just mentioned now. We would certainly be pleased to entertain any of your questions on the subject of copyright law revision.
Senator Forrestall: If I studied that for the next two days, I probably would fully understand. You are talking to the uninitiated and the untrained.
Mr. Bloom: That is why we wish to have an opportunity to permit to you ask whatever questions at whatever level you wish to ask them.
Senator Forrestall: My question would be, "What did you say?"
Senator Roberge: Did I hear you say that you have concerns with the bill but not enough concerns to not pass the bill?
Mr. Mayer: Yes. Our position is that the technical concerns we have with the bill are not sufficient to stop the bill being passed if Parliament considers, on policy grounds, that the bill should be passed. I also said, however, that, in that case, there should be steps taken to remedy any deficiencies at an early date, and it would be our expectation and hope that that could be done.
Senator Roberge: Can we not wait for the five-year grace period?
Mr. Mayer: Speaking personally and not committing anyone, I feel that there are sufficient pressures in the system, particularly resulting from technological developments and other things, to make it highly probable that another major copyright bill will be introduced well within the five-year period. As I said in my remarks, there are other means or mechanics by which relatively uncontroversial amendments can be dealt with without going through another major copyright bill.
Senator Forrestall: The passage of an imperfect bill does not render it a wrong act. It is probably useful in order to get something where you might begin to amend it, or at least to examine it if not amend it. Is there anything in this that would be that difficult and unbearable were it to pass in its present form?
Mr. Bloom: I think your question delves into the area of policy. We can identify for you and, we have in our brief -- the areas which we regard as giving rise to technical difficulties. We have not spoken on a number of issues in the bill on which you are receiving submissions from a policy front. We have provided for you our comments, and we have provided for you a means where our technical issues may be addressed if, for policy reasons, it is considered by this standing committee and subsequently by the Senate that the bill should be passed. I do not think we, in our role as merely technical experts, can provide a further comment to you. Our role is technical; your role is policy.
Senator Forrestall: We are not an elected body, sir, and I think you appreciate that, without getting into a discussion. We are not a policy body either. We have a responsibility to produce good legislation. If this is technically not good legislation, can the users and creators live with it? I am not asking for policy or opinion; I am asking for a professional, technical opinion. Will it work?
Mr. Bloom: We have identified areas where we feel it will create problems, and particularly Mr. Mayer's comments with respect to clause 58.1, which could create some significant problems with respect to commercial arrangements already in place. Whether other provisions can be addressed by the parties is a question that you would need to ask those parties themselves: Can they live with the bill in its current form? For us to go beyond that and say that one provision is desirable or not desirable puts us in a position of having to express a view on policy.
I should say that members of our committee, in separate capacities, will address and have addressed issues of policy on behalf of clients whose interests are affected by the bill. However, we must confine our comments here to the technical effect of certain provisions. If you have certain provisions in mind, perhaps we would be able to address those on a one-by-one basis, but to make a global statement is somewhat difficult for us.
Senator Forrestall: Thank you.
[Translation]
Senator Pépin: We were told that universities and CEGEPs would encounter considerable problems if the legislation was passed as is. We were told that legal action could be taken and that this could prove very costly.
We have also heard that universities and colleges cannot afford to pay all of these copyright fees. Could you give us your opinion on this matter? Are you saying that if the bill is adopted in its present form, from a technical standpoint, we will encounter more problems?
[English]
Ms Hebb: Do you mean that there has been some suggestion there would be lawsuits over the meaning of certain clauses or sections? Were there any specifics clauses mentioned? Perhaps we could speak if it is more specific. Otherwise, it sounds like a policy question.
[Translation]
Senator Pépin: Among other things, if we were to use exerpts from articles that have been published, or if we were to screen videos in the classroom, then this could lead to some major problems and perhaps some legal action could be taken.
[English]
Mr. Bloom: Perhaps in response to your question I could point to a specific provision that we have raised on page 9 of our brief. In clause 29.4(1)(b) there is an exception for the overhead projection of an image. In this circumstance, it is our understanding that the policy intent is that this provision would not permit the overhead projection of a motion picture. If that is indeed the policy intent, we think that that intent has not been achieved, or at least arguably not achieved by this clause.
If as a result an institution were to project a motion picture on an overhead, there is a very good argument that they are entitled to do so although policy is not clear. That may give rise to unfortunate litigation. However, all we can say is that, as with this provision, there may be technical issues where the policy intent is not carried through.
Mr. Mayer: I think the concerns of the educators, as to the validity of which we express no opinion, are more on the policy level as to whether certain exemptions should be broader and that sort of thing. There has not been a piece of legislation of this complexity passed since the beginning of time which has not resulted in a number of technical problems ending up in the courts.
In the areas which you specifically addressed, Senator Pépin, I do not think there are more problems than would usually be found in this complex type of legislation. From a practical perspective, the arguments of the educators -- some of which I have seen because they appeared in the press, and so on -- are really policy points.
Senator Spivak: In connection with criminal provisions, the last set of presenters seemed to imply that there are things contained in this bill which would invoke criminal indictment and which should not be there. They felt that was not justified.
What is your opinion on this subject?
Mr. Mayer: First, the changes in the bill from the existing law are relatively minor and they slightly improve the position of accused persons with regard to the seizure of infringing plates. I can go into the details but I do not think the committee would be interested in that.
There are maximum penalties in this bill in monetary amounts which are very high. However, those are maximum amounts and it is up to the judiciary in each case to determine what penalties are imposed. I have had a certain amount of experience in this. As a practical matter, if a potential crook reads of a very heavy penalty, that encourages good conduct. However, when he could not withstand the temptation and sinned, the courts have been most reasonable in the penalties they have applied.
Inevitably, in a system which cuts right across the cultural and intellectual industries, there will be odd cases which go awry. Those cases are then trotted out before people like members of this committee as typical of what actually happens. In the marketplace, those kinds of situations are totally atypical and the system has, by and large, worked very well.
Senator Spivak: My question is whether there are criminal penalties in here which are harsh as compared to other legislation and as compared to what is involved here; for example, Xeroxing a copy which should not be Xeroxed. I am sure you are correct that those penalties will not be employed by anyone with half a brain, but that is not the issue. The issue is this law in terms of the standard, in terms of other pieces of legislation and in terms of the offence. Are these penalties harsher?
Mr. Bloom: The issue of the magnitude of the criminal sanction was addressed at length in the discussions which led to the Phase I copyright revision, at which stage it was concluded that the existing provisions prior to 1988 were much too lenient. At that stage, it was determined by Parliament that it was necessary to increase those amounts, and those increased amounts were enacted in 1988 and remain today largely the same in Bill C-32.
Senator Spivak: They are suggesting that there should not be any criminal provisions on campuses; that this is capable of generating an inappropriate chill; and that this is not a hypothetical concern because recently several professors at the University of Ottawa were almost charged by the RCMP in connection with material for a criminology course. They are saying that faculty, staff and students of the university should be assured that an inadvertent copyright infringement which does not involve any profit motive or fraudulent intent is simply not a criminal offence.
You are saying that this was in the law before and is in the law now.
Mr. Bloom: That is the case, and whether or not this should be a criminal offence is a matter of policy on which we do not opine.
Senator Spivak: Is the standard in terms of offence and penalty harsher than in other areas of this kind?
Mr. Mayer: Each particular kind of crime is unique, and the only comparison you can make is with what is going on in other jurisdictions. To the best of my knowledge, this standard is completely in line with and not harsher than standards that exist in the United States or in the United Kingdom, just to mention two jurisdictions. As Mr. Bloom mentioned, this entire subject was gone into at great length in the Phase I process.
The Chair: I have a question on clause 45.(1)(e) which reads:
to import copies, made with the consent of the owner of the copyright in the country where they were made, of any used books, ...
And this was added as an amendment in the House of Commons:
...except textbooks of a scientific, technical or scholarly nature for use within an educational institution in a course of instruction.
Is there any similar situation in other countries, or would we be the only one to have that?
Mr. Bloom: It is fair to say that we cannot specifically answer your question at this stage. What we can say is that Bill C-32 introduces somewhat unique provisions for Canada in the field of creating exclusive rights for distributors of books. The area which you are addressing begins to approach an area where Canadian legislation is not entirely in sync with the legislation in other countries.
It may well be that, for reasons of the unique nature of that legislation, this provision was deemed to be appropriate but we are unable, at this time, to answer whether there is a comparable provision in other legislation.
Ms Hebb: There is a similar provision in the Australian law for importation. Whether or not it has a clause like this, we do not know. We could check on it.
The Chair: I was going to ask about that.
Ms Hebb: So could your legal counsel.
The Chair: We will all do it, but if you find out before we do, then let us know. Thank you.
Senator Spivak: I have a question regarding the nature of protection. Perhaps this is a policy question. This bill was designed for the protection of the Canadian publishing industry, the only difficulty being that there is no Canadian publisher who publishes these books. That was pointed out to us. No Canadian company operates a facility for redistribution of these used books. The only place that deals with scientific and technical books is in the United States. That is my understanding.
Ms Hebb: There are books which are sold into the United States and then they come back across the border. No one produces used books.
Senator Spivak: I do not mean that. Let me clarify. Not many books are produced in Canada of that scientific nature. Most such books come from the United States. We were told there is one major facility in the United States to which these used books are sent from Canada and then they come back. There is no similar facility in Canada.
The position was raised before us that there is no reason for these provisions because it does not protect any part of the Canadian publishing industry in terms of disturbing the market for new books of this kind.
Mr. Bloom: The provision was largely intended to provide protection for Canadian publishers of new textbooks. As far as we are aware, it is not intended to protect the used book market.That is our current understanding.
Senator Spivak: That is right. I just had a very roundabout way of explaining that. I am sorry.
Ms Hebb: Perhaps I missed something, but the reason for this provision may be that some of the Canadian publishers are agents for the same books when they are being sold new in Canada. I am guessing that their concern may be that the same book is coming into Canada as a used book. I presume their point is that they will then sell less of the new book. That is my speculation.
Senator Spivak: We were told that this is not happening, but, just in case it should be happen, they introduced this. It was a solution in search of a problem. We were told that.
I just wondered if you had any additional light to shed on that.
Mr. Bloom: I do not think we can shed any additional light. It is largely a policy question.
Senator Johnson: We have had information overload today, so bear with us. The Society of Composers, Authors and Music Publishers of Canada were before us this morning. They want clause 90 removed in and of itself. They want clause 66.91 completely removed. They said that if this is not removed, they will be in litigation for 10 years.
Is that something you can address for me?
Mr. Bloom: We might be able to say something on clause 90. Was clause 66.91 the other one?
Senator Johnson: Yes. That was with regard to the Governor in Council regulations and issuing policy directions. Can you explain that?
Mr. Bloom: I could respond to a certain extent with respect to clause 90 and Mr. Mayer can do so on the other provision.
We understand that the policy intent behind the bill is not to create a hierarchy of rights of copyright, with certain rights being superior to other rights. That is our understanding of the policy. If that is indeed the case, it is our view that the amendment to clause 90 introduced by the House will likely lead to an interpretation that is inconsistent with that policy.
Let me give you an example of what I mean by the hierarchy of rights. Suppose there is an infringement of a Part II copyright, say, in a sound recording which incorporates a musical work. There is a sound recording of a musical work <#0107> that is, a composition. The owner of the copyright in the sound recording, which is one of these new Part II neighbouring rights, wants to obtain an injunction against the unauthorized reproduction of that sound recording. However, the owner of copyright in the musical work is someone else and that person does not want an injunction because it might interrupt a royalty stream, or for some other reason.
We raised the question that section 90 may well give the opportunity for the owner of copyright in the musical work to say that their rights are superior to the copyright in the neighbouring rights. To that extent, we think that the clause as amended may not entirely accord at least with our understanding of the policy.
Mr. Mayer will be able to provide you with comments on the other clause.
Mr. Mayer: Clause 66.91 gives the Governor in Council the power to give directives to the Copyright Board as to the criteria to which the board must have regard in establishing fair and equitable royalties.
To the best of my recollection, that clause was amended in the House. The amendment adopted one of the recommendations made by this committee to make it clear that the royalty scale which is prescribed must be fair and equitable. Whether you get a scheme by which the Copyright Board is completely independent, as many may consider desirable, or whether you have a scheme by which the government has power to give directives to the copyright tribunal, that is a matter of policy. However, if the clause, as clause 66.91 now does, restricts the power of the government to make sure that the provision must be fair and equitable, then a lot of the sting of this discretionary power given to the government is removed.
There is a somewhat similar provision in the act at the present time on a more narrow basis dealing with the re-transmission royalty. That basically means the royalty which cable systems must pay for the re-transmission of distant signals. That is a major subject which comes up before the Copyright Board from time to time.
The government has issued some directives under that provision, and I must say that the world has not come to an end as a result.
Senator Spivak: Is the status of the Copyright Board vis-à-vis the government similar to that of the CRTC, in the sense that the government can direct the CRTC but there are certain restrictions about the way it does that?
Mr. Mayer: This particular section sets out the restrictions rather plainly.
Senator Spivak: Would it be a parallel kind of situation where people expect the CRTC to be independent yet the government can give it direction, but it must be direction of a broad nature and not a specific nature?
Mr. Mayer: This is even more restrictive. My recollection is that even in the CRTC provisions, there are some rather limiting provisions as to the power of the government to issue restrictions or conditions with regard to licences, for example. This is a rather restrictive provision.
Senator Johnson: Is this a restriction that would cause the litigation that SOCAN was talking about today?
Mr. Mayer: No.
Senator Johnson: What is their problem?
Mr. Mayer: I will tell you what the problem is. I am not endorsing the problem; I am just stating it to you. There is a widely held view, which I think can be justified <#0107> and, there are arguments against it as well -- that a board which is supposed to be a rate-setting tribunal and whose job it is to fix royalties on a fair and equitable basis should not be subject to government control. That is what they are concerned about.
In addition, the issue of litigation might arise in relation to the interpretation of clause 90 and the inter-relationship between the various rights that are currently in the legislation and now become Part I rights. The various Part II rights that are enacted by this bill and the entitlements to royalties and amounts of royalties.
Senator Johnson: Thank you. That helps me.
Senator Anderson: You indicated that clause 58.1 caused you considerable concern.
Mr. Mayer: Yes.
Senator Anderson: I should like to you elaborate a little more on that. Why?
Mr. Mayer: Let me give you one example which has been mentioned. It arises a performer has given the record company the right to make a sound recording and to reproduce it, the performer now has the right to receive remuneration from the fixation of sound recordings. There is a provision saying that if he has authorized it for a specific purpose, then that does not apply to things which he has not authorized.
As a practical matter, if the performance is fixed straight away in the soundtrack of a motion picture, there is no great problem. If, however, the motion picture embodies a sound recording which was previously done -- such as a 1962 Beatles record -- the question arises whether the licence normally given by the sound recording company to enable the recording to be embodied in the motion picture is sufficient, or whether it would be necessary to go back to the performer.
The record companies enter into quite broad-ranging contracts which are very complicated. In some cases, there may be no problem because the language may be sufficient to cover the situation. There may be other circumstances where the language is not sufficient and where it therefore becomes necessary to go back to the performer.
As a practical matter, this requires some fairly careful checking as to whether or not this language is sufficient. Some inspired interpretation and guess work determines who wins. That is one example. I could give you other examples.
Mr. Bloom: The example is complicated by the fact that, in our view, the interpretation of clause 58.1 would apply to contracts which the parties may have specifically agreed would be governed by the laws of a foreign jurisdiction.
Your question might be answered in one way, as Mr. Mayer has indicated, if it was litigated in a California court and in a different way if it is litigated in Canada in the specific circumstance which Mr. Mayer has set out for you.
Mr. Mayer: I should also mention that my example must seen in the context that the bill does not give rights to all performers. There are certain nationality restrictions and that sort of thing, but that is a separate issue.
The Chair: Thank you for your presentation and your answers.
The committee continued in camera.