C-11 Legislative Committee on copyright: week one

CCA Bul­letin 04/12

March 5, 2012

Just the facts

The first week of con­sul­ta­tions on Bill C-11 saw the first 24 wit­nesses invited to present their views. The process is mov­ing quickly and will con­tinue at this pace as the gov­ern­ment fast tracks the Bill. All wit­nesses will be heard by March 14, then it will go into clause by clause debate by the com­mit­tee and the Bill sent back to the House of Com­mons by March 29. There were a few hot topic issues that had the MPs mak­ing accusatory com­ments across the floor and ask­ing the wit­nesses some very spe­cific ques­tions. Nonethe­less the Com­mit­tee pro­ceeded in a very orderly fash­ion under the Chair­man­ship of NDP MP Glenn Thibeault.

Pan­els are gen­er­ally set up so that two sides of an issue can be heard simul­ta­ne­ously. Gov­ern­ment MPs spent most of their allot­ted time ques­tion­ing users, keep­ing their tougher ques­tions for rights own­ers, while Oppo­si­tion mem­bers gen­er­ally did the reverse. Eco­nomic impacts on either sides of the argu­ments; how license fees are set; the rel­e­vance of col­lec­tive licens­ing; the con­fu­sion between dif­fer­ent prop­erty rights (‘hav­ing to pay twice for the same thing’); and whether class notes needed to be destroyed after 30 days were all issues raised, often with much con­fu­sion. The moral rights of cre­ators were dis­cussed but most argu­ments regard­ing tar­iffs and roy­al­ties focused on the capac­ity to pay of the peo­ple who make money using other people’s prop­erty. At the core of all this was the debate about edu­ca­tional exemp­tions and fair deal­ing, pri­vate copy­ing rights and broad­cast mechan­i­cal ephemeral rights.

The next meet­ing is sched­uled for today (Mon­day) at 3:30 and is avail­able to watch online.

Com­ment

Most MPs seem quite knowl­edge­able on copy­right and the issues sur­round­ing it. Some have referred to their per­sonal expe­ri­ence, such as NDP MPs Andrew Cash and Char­lie Angus in music and CPC MP Scott Arm­strong in education.

Com­mit­tee mem­bers asked tar­geted ques­tions to sup­port their own posi­tions on the var­i­ous aspects of the Bill. Some used alarmist para­phras­ing of witness’s posi­tions on top­ics such as levies and mechan­i­cal rights. Oth­ers asked broad­cast­ers why they do not rec­og­nize the value to their busi­ness of pay­ing for the music they use or the var­i­ous copies they make, since we are talk­ing about the right to use or copy. Yet another ques­tioned the impor­tance of smaller roy­alty pay­ments to strug­gling musi­cians since suc­cess­ful musi­cians are get­ting most of the rev­enue per­ceived and they most likely do not need the sup­port! Often, the basic con­cepts under­ly­ing copy­right are pushed aside in the search for polit­i­cally bal­anced solu­tions, appar­ently based on the prin­ci­ple that mak­ing as many stake­hold­ers as pos­si­ble equally unhappy is the yard­stick of a good copy­right law.

Make me smile…or cry!

Tues­day saw a lot of con­fu­sion around the nick­named “book burn­ing clause”, a topic on which the Com­mit­tee spent a lot of time. That led to some argu­ing between the MPs as the Chair fought to main­tain order. The dis­agree­ment led to one wit­ness from the Asso­ci­a­tion of Cana­dian Com­mu­nity Col­leges to say “How do you expect me to give an opin­ion on the mat­ter when even you can’t agree on the inter­pre­ta­tion of this clause!”

Most legal experts heard main­tained that this sec­tion should not raise too much con­cern as it does not apply to course notes but only to mate­ri­als that would oth­er­wise infringe copy­right if they didn’t fall under the edu­ca­tion exemp­tion. But accord­ing to the writing/publishing indus­tries, this is pre­cisely the exemp­tion that will harm if not kill the Cana­dian writing/publishing indus­try in which gov­ern­ments have recently invested over $25 mil­lion to develop dig­i­tal mar­kets. How long and how costly will it be for that indus­try to bring a case of unfair deal­ing by some edu­ca­tion insti­tu­tion all the way to the Supreme Court? And even then, what to expect con­sid­er­ing that the same Supreme Court has cre­ated the notion of user rights out of thin air and already stated that in inter­pret­ing fair deal­ing, the dam­age to the right owner’s busi­ness is only one con­sid­er­a­tion, and not nec­es­sar­ily the most impor­tant! Viewed from that angle, one under­stands the wor­ries of Cana­dian writ­ers and publishers.