CCA Bulletin 26/10

October 25, 2010

Copyright: the Parliamentary debate is about to begin

Just the Facts

Bill C-32, the Copyright Modernization Act, is scheduled to be presented in the House of Commons for second reading next week on Tuesday, November 2. Debate in second reading covers the basic principles of the proposed piece of legislation. In an exceptional turn of events, in the case of C-32, the government has obtained the agreement of the three opposition parties to limit debate to a minimum so that the bill may proceed to committee review as quickly as possible.

This means that most likely, by November 4 or 5, the bill will be sent to committee. The committee will hold hearings of witnesses and proceed to a thorough study of the bill, clause by clause. In this case, because the legislation falls under both the Ministers of Heritage and Industry, there is a need to strike a special legislative committee comprised of members drawn from the Heritage and Industry Standing Committees, a task which may take about 10 days. Under this scenario, committee hearings should start on or around November 15.

The main purpose of C-32 is to make Canada compliant with the 1996 World Intellectual Property Organization (WIPO) Internet Treaties. Introduced for first reading in the House of Commons on June 2 by the Minister of Industry Tony Clement, it now seems that the Minister of Heritage James Moore has taken the lead in shepherding the bill, which also falls under his responsibility.

C-32 is presented by the government as striking a balance between creators and users. However, the bill has been much disputed in the cultural community. While welcoming some aspects of the bill, the sector has perceived it as more of a “users’ rights bill” at the expense of artists and individual creators, and as a systematic attack on the current system of collective licensing. In the legal community, the Quebec Bar Association has published a condemnation of the latest attempt by the federal government to update our copyright legislation and has demanded the withdrawal of Bill C-32 (see below). Obviously, the debate in the coming weeks is likely to be quite lively!

A CCA roadmap to the upcoming debate

Over the last several months, artists, creators, producers, writers and musicians’ associations and collectives, as well as a flurry of other stakeholders in Canadian society have commented on issues they wish to see amended, added or deleted in the bill.

In order to help its members and the general public understand the positions of the various players – and eventually prepare their own interventions in the public debate - the CCA has prepared a Bill C-32 backgrounder in which the various areas of support and concerns are outlined by the cultural sector. A separate document summarizes the reactions of the education communities, another gives an overview of the notion of “fair dealing” in 10 foreign jurisdictions, while yet another summarizes a recent article published in The Hill Times by University of Ottawa professor Michael Geist.

While all associations and collectives recognize the need to update the Copyright Act, primary concerns are focused on how individual artists will fare in the digital economy and on the fundamental issue of how creators can retain the ability to make a living off their original works. There is broad agreement that if that ability is hindered by the legislation, then the bill should not pass through the House of Commons.

The fundamental flaw in Bill C-32 is that numerous and often ill-defined exceptions and new language reduce income to creators through changes to fair dealing, the weakening of collective licensing mechanisms, a sweeping exception for education, format shifting without remuneration, the notice-and-notice policy, etc. The exceptions and vague language are believed to lead to an increase in litigation – a course of action which many artists will not have the resources to pursue and simply see their right expropriated.

This last point is one of the several raised by the Quebec Bar Association in a public letter to Ministers Clement and Moore. After a rather a scathing review of Bill C-32, the Quebec Bar concludes that it is a flawed piece of legislation which should be withdrawn for a variety of reasons:

Bill C-32 does not meet Canada's international obligations as it goes against the three-step test before granting exemptions without remuneration to rights holders;
it raises problems of coherence with international and provincial legal texts and is ambiguous in the treatment of the responsibility of Internet Service Providers;
it introduces legal uncertainty and encourages litigation;
it creates exceptions that depend on conditions either unrealistic or impossible to verify;
it introduces the dangerously imprecise concept of "education" in "fair dealing" (according the Bar, “One can expect several cases of litigation given the way the bill is written.” - our translation);
it negates the collective exercise of copyright and favours individual litigation through unpractical and unrealistic remedies;
it removes remuneration from rights holders, thereby ruining the existing equilibrium between creators and users of protected material, contrary to the very objectives of the law.

Some 20 cultural organizations, including the CCA, have recently met with representatives from the Liberal and NDP parties to present views summarized in a document prepared by the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA). Similar meetings are likely to take place within a few days with representatives of the Conservative Party and the Bloc Québécois. The core of the message conveyed by this large coalition of stakeholders is that the introduction of numerous broad exceptions, the refusal to adapt the private copying regime to present and future technologies, to strengthen collective licensing, or to adopt other proposals designed to give both ease of access to cultural works, to consumers, and fair remuneration to creators will lead to the destruction of numerous creative industries.

The government has said that it was open to amendments, but examples demonstrate that compromise does not seem possible. For example, the private copying levy at the core of collective management of copyright, is continually described as a tax on consumers by the government.

Tell me more about the legislative process and why it matters

Bill C-32, an Act to modernize the Canadian Copyright Act, was tabled for first reading in the House of Commons on June 2, 2010. The document has 65 pages of references for changes to the current Act.

The second-reading stage of a bill consists of debates in the House during which, under normal rules, all 304 Members may speak for at least 10 minutes on the principles of the bill. As mentioned above, in the case of C-32 the government has been able to convince opposition parties to agree to a much limited debate on second reading. Theoretically, the bill could be voted down after the debate, in which case the bill simply dies, and the government cannot introduce an identical bill in the same Parliament. But it is already certain that a majority of the House will at this stage vote in favour of C-32 and therefore send it to committee.

After witnesses have been heard, all committee members can propose amendments. But not all amendments are admissible. For an amendment to be admissible the subject has to be addressed in the ill and the amendment must alter an existing clause of the bill. One cannot introduce a new clause on a different subject. Amendments that involve a commitment of public funds are also inadmissible. Amendments are voted individually by the committee, after which the Committee Report is presented to the House for third and final reading. Depending on the results of the work in committee and on the political context of the debate, C-32 could still be defeated at that final stage of the Parliamentary process. Alternatively, if the committee process drags on, it may well be that the bill will die on the Order Paper if, as is currently speculated, a federal election is called in the spring further to the presentation of the budget.

What can I do?

Read our various backgrounders on copyright and Bill C-32 so that you understand the concerns of the cultural sector. If possible, make sure you or your organization asks to appear in front of the legislative committee (the CCA will circulate the contact information once the committee has been struck and its Clerk has been appointed). Or, at a minimum, contact your local MP and express your concerns with this bill. You may find the contact information for your MP here.

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