Copyright: the Parliamentary debate is about to begin

CCA Bul­letin 26/10

Octo­ber 25, 2010

 

 

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.