Ms. Danielle Bouvet:
Mr. Chairman, ladies and gentlemen of the committee, my colleague, Albert Cloutier, and I are delighted to be here again to further our discussion on copyright.
Last week, we spoke about the Copyright Act and its primary guiding principles. We also spoke about the major international conventions governing copyright that form a backdrop to the Act.
It is our intention this afternoon to provide you with a brief overview of the various revisions of the Copyright Act.
If you turn to page 2 of the presentation that has been circulated, you will see that the first major review of the Copyright Act took place in 1988. This heralded the granting of new rights, a move towards collective rights management, and the establishment of the Copyright Board.
On the subject of new rights, although authors already held moral rights prior to the 1988 review, the update clarified the scope of these rights and strengthened the avenues of recourse open to rights holders in case of infringement.
It is important to understand that, prior to 1988, computer programs were not officially covered by the Copyright Act. However, it became clear that computer programs were comparable to literary works and, therefore, merited protection under the Copyright Act. Protection of computer programs was consequently enshrined in the 1988 review.
The review also encouraged collective rights management. Several measures to allow not-for-profit associations to represent several authors or producers were introduced with a view to promoting collective rights management over individual rights management.
The review also led to the establishment of the Copyright Board. Since 1988, the Board has been responsible for setting the royalties to be paid by users seeking to use works protected by the Copyright Act.
Page 3 provides an overview of another major review of the Copyright Act. It focused on three main areas.
Firstly, it introduced new rights for performers and producers of sound recordings, while simultaneously providing some exceptions for educational establishments, museums, archives and libraries.
Allow me to provide you with an example of the new rights that were granted to producers and performers. Prior to 1997, a performer whose work was played in a public place or on radio was not compensated for this use of their material, as it was deemed to be a question of statutory law not covered by the Copyright Act.
Since 1997, performers and producers of sound recordings have had the right to be remunerated each time their song is played in public, be it on an airplane, in a shopping centre or any other public place, such as, for example, here in this room. Performers and producers must now be paid for any use of their sound recordings or performances.
As regards exceptions, I explained last week that the Copyright Act provides authors and artists with either sole rights or rights to remuneration. Sole rights are considered the Cadillac of rights in copyright circles, while the right to remuneration provides for the rights holder to be paid, but does not allow him to deny consent for his work to be used.
In 1997, exceptions were introduced to allow certain users such as schools, researchers, museums and archives to make use of protected works. While it is not mandatory, if they do opt to use these works, they are bound to respect certain conditions. They do not, however, have to seek the author or artist's permission and, in some instances, are exempt from paying royalties.
A second principal focus of the 1997 review was the private copying regime. The private copying regime creates an exception allowing any individual to reproduce, for personal use, a musical work, a sound recording, or an artist's performance of a musical work. In tandem with this exception, the 1997 review also provided for a compensation regime to provide authors, producers of sound recordings, and performers whose performances are fixed in sound recordings to receive royalties for private copying.
Section 92 is another important section in the Copyright Act. It required the government to report to both the House of Commons and the Senate on how the act was operating. Under the provisions of section 92, the government had to report to both Houses in 2002. We will come back to this a little later.
Lastly, 1997 was also the year in which Canada signed the two WIPO Internet treaties, another matter that we will return to later. One of the treaties deals with protection for authors, and the other with protection for producers of sound recordings and artists whose performances are fixed in sound recordings. In signing these treaties, Canada officially recognized the underlying principles of these two international agreements. It is important to draw a distinction between signing and ratifying. Ratification is the stage following the implementation of a treaty.
Mr. Albert Cloutier (Director, Intellectual Property Policy Directorate, Department of Industry):
Turning to page 4, Danielle referred to section 92 of the Copyright Act, which required that the government table a report on the operations and provisions of the act. That section also required that once tabled in Parliament, it be referred to an appropriate committee for its study and that the committee would then be required to provide its own report.
In fact, the report--I have a copy here, and some of you may recall it from your time on the committee back in 2002--was referred to the heritage committee, this committee. The committee began to examine it in the spring of 2003, and actually in great earnest, I would say, in the fall of 2003, and this led to certain reports.
I want to put the document into context a little bit. I think one of the reasons for the inclusion of section 92 in the act was to recognize the significance of the changes brought about by Bill C-32 in 1997. It was felt that at the end of five years it would be opportune to re-examine the impact of those changes.
But at the same time, the government, in tabling the report, had a number of objectives in mind. The first thing they did was, in recognition of the complicated process of amending the act, which often seemed to result in some level of controversy and acrimony, try to streamline the process by which future amendments to the act might occur.
So what the report proposed was that rather than undertaking a large omnibus type amendment in the future, the government would propose perhaps smaller step-by-step amendments, and they would try to group amendments in some way thematically. So the first thing the report did was to affirm a kind of step-by-step approach in the interests of perhaps improving the efficiency with which the act could be amended.
The second thing it sought to do was to demonstrate that there were still a lot of issues that stakeholders were calling on the government to try to resolve. So it provides a catalogue of...it depends on how you count them, but some would say up to about 70 different issues that the government was asked to have addressed.
Then the report tackles those issues by trying to group them based on a certain maturity, I guess, or a priority as far as the government is concerned. It tries to group them into short-term priorities, medium-term priorities, and long-term priorities. In a sense, the short-term priorities are described generally in terms of what ultimately came out in Bill C-60; namely, it looked at certain Internet-driven issues, the need to re-examine the level of protection in the Internet environment to look at the way intermediaries like Internet service providers are dealt with, and how educational institutions and other not-for-profit public institutions should be able to utilize the Internet to manage or further their objective.
That's what the report did, in a nutshell.
I have just one further word. It goes without saying, of course, that this is the document of the past government, and to date, there's been no endorsement by the present government.
Ms. Danielle Bouvet:
Mr. Chairman, page 5 refers to another document that has played a very important role in copyright reform. I am of course referring to a government interim report tabled in March 2004 in response to requests from the Standing Committee on Canadian Heritage for an update on the status of copyright reform.
This document sets out and discusses all of the issues relating to new technologies and Internet that have been debated over the past few years. You will note that we opted not to address certain issues as we considered them to have been dealt with in the report that was tabled with your committee.
This report, which Albert spoke about earlier, focuses on a four-pronged reform.
The first area addressed is the implementation of the WIPO treaties. The second is the issue of photographers, a question that is analyzed in detail and which is still subject to much debate. Thirdly, it focuses on clarifying the role and liabilities of service providers in the context of new technologies and Internet. The fourth area addressed is access to exceptions regarding rights holders' rights.
The report tabled in March 2004 addresses all of the above issues and sets out Canada's obligations.
Page 6 of our presentation refers to the report that this committee tabled in May 2004. The report was approved by the then members of the committee for a second time in November 2004. It revisits some issues raised in the interim report, but not all of them, as some were deemed to have been resolved. The committee chose not to reopen the debate or hear witnesses on issues deemed to have been resolved. Page VII contains the list of issues on which the committee made recommendations to the government following its discussions.
I am going to ask my colleague to walk you through page 7, which deals with the government's response to the standing committee's interim report. He will provide you with the list of proposals set out at the time.
Mr. Albert Cloutier:
In response to the heritage committee's request, the government tabled a statement in March 2005 that tried to outline conceptually, but with some degree of detail as well, what it proposed to do in the actual amendments that it was in the process of developing.
Rather than go through a detailed list, at this point I would refer you to the next slide, which describes Bill C-60--tabled three months later, at the end of June--and what it sought to do, again very much in keeping with the section 92 report and the status report that had been provided previously.
In terms of new rights and protections in the Internet environment, the bill would implement the new rights and protections found in the two 1996 WIPO treaties to the extent they were necessary. The key rights in that case are the making available right, the legal protection of technological protection measures, and the legal protection of rights management information. I'll talk about those briefly before moving on to a description of some of the other provisions.
The making available right, required by the treaties, would give rights holders, whether authors or the neighbours--that is, the sound recording makers or performers--the exclusive right to control the very appearance of their material online. In our own assessment of the state of Canadian law, and based on Supreme Court of Canada decisions, we came to the conclusion that the communication right that authors currently benefit from already integrates a making available right for authors. So no significant amendments were needed in that regard.
As far as the music producers and performers were concerned, while the activity of making available may be covered under the communication right that they enjoyed, which is only a remuneration right, amendments were needed to elevate the right to an exclusive right in the online environment. So there were some significant amendments required there.
As far as the legal protection of technological measures is concerned, this provision deals with the ability of rights holders to apply a digital lock on their material to ensure that people can make only non-infringing use of that material. The provision would bolster the use of these technologies by giving rights holders the ability to sue those people who would circumvent the digital lock, who would, without authorization, break through the lock. There were no such provisions in the act at that time--or now--so again, amendments were needed. The approach we took was to say that whenever somebody breaks that digital lock for an infringing purpose, then the rights holder would have a remedy.
Similarly, if somebody purports to provide a service to someone else where that service entails the breaking of the lock on behalf of someone else, and they knew or should have known that the service would be used to further an infringement of copyright, then they too would be subject to some kind of sanction.
The provision on rights management information deals with information that a rights holder may embed in the work--in the form of, say, an electronic watermark--so that their work remains identifiable and associated with them and the uses they allow.
Increasingly, these rights management information elements are included in systems that are known as digital rights management systems, that control the licensing of material and the uses that can be made in, again, a digital environment. But because that information is key to the operation of these digital rights management systems, rights holders would have legal recourse against those who would try to alter that information in a way that would permit infringement. And because the act didn't contain provisions in that regard, and still does not, the bill would have added these three elements. And those are, I would say, the three key elements of the WIPO treaties that required amendment.
Other amendments were also required, in our view. There is a need to adjust the term of protection for photographers to meet the requirements of the treaty, and for performers there was a need to recognize moral rights on their behalf. There was a need to introduce a new distribution right, which gives a rights holder the ability to control the distribution of their material in a tangible form. So we're not talking about online, we're talking about the actual CD or book, or what have you. A number of sort of ancillary amendments would nonetheless be required pursuant to the treaty. Those are the main treaty protections that the bill would address.
As well, the bill dealt with the copyright liability of Internet service providers by basically exempting them from liability when their main activity was simply to be an intermediary, to facilitate the communication of content between the actual provider of the content and the recipient or subscriber. As long as they didn't kind of alter the content or play a role in selecting out the content, they would be exempt.
They could also engage in certain activities that involved reproductions of copyright material, where this was done only to improve the efficiency of the Internet. They weren't necessarily interested in the material as such, but they were interested in allowing the Internet to operate more efficiently. To do this they make caches on certain websites that allow more rapid access without clogging up the arteries of the Internet, if you will.
By the same token, Internet service providers were expected to play a role in trying to curtail the infringement that was going on online, by participating in what we have called a “notice and notice regime”. Under that regime, if a rights holder sees that certain subscribers of a particular ISP are involved in some kind of unauthorized activity, then they could send a notice to that ISP, and then the ISP would be required to forward that notice to the subscriber. That way, the subscriber was put on notice that his activities had been detected.
The other obligation that would kick in at that point is that the ISP would be required to maintain information to identify the subscriber in question for a certain period of time, so that in the event of litigation between the rights holder and the subscriber, there was a way for the rights holder to ascertain who exactly was involved in this activity.
In effect, that speaks to one of the reasons why the intermediaries are involved at all: it's often very difficult to know who is behind some of these activities. A lot of people in the online environment go by certain handles and it's not possible to truly know who they are except with the help of the ISP. So that was the second major element of the bill.
The third major element of the bill relates to certain uses that were going to be permitted for educational and research purposes, and the bill had two major amendments. One was to allow for a form of distance learning, so that schools would be entitled to use the Internet as a means of transmitting lessons to students. By way of example, it may be the case that a teacher is standing in a classroom and the presentation that the teacher makes to the students is also webcast to remote students.
Oftentimes there are copyright materials that are incidental to the lesson that are being used to enrich the lesson. The act already allows for teachers to make certain uses of copyright material in their lessons. This would simply ensure that the teachers could also communicate via Internet to remote students and include those copyrighted elements.
A second aspect relating to education was the ability to transmit certain course material to remote students, provided the course material was already covered under a reprographic licence with an appropriate collective society. If the school had the ability to photocopy materials for their students and provide it to them in the form of course packs, then they could also transmit the course back to the student with the proviso that there be certain safeguards in place that didn't allow the student to do anything other than print off a copy. In essence, the Internet would just be another means of conveying the course pack to the student.
Finally, on the research side, the act currently allows for inter-library loans to take place in the following way. If I request a copy of a journal, an article of some kind from a library, and they don't have it, they can go to another library and ask them to provide the article to me. However, if they send it electronically, they can only do so to the requesting library--my library. Once it gets to my library, my library has to print it off and hand me a paper copy. Under the provisions that were proposed in Bill C-60, you wouldn't have this additional administrative step involved, that is, the providing library could send directly to me, the patron, a copy of the article. There again, the requirement was that the only thing I could do with it was print off a copy myself. It avoided the additional administrative step of having my library print off a copy and send it to me.
There were a number of other provisions related to photography. Right now under the act the first owner of copyright in a photograph is the person who actually owns the negative or the plate used to make the photograph; it is not the photographer. In fact, the person who owns the plate is deemed to be the author of the photograph. This was seen as being out of keeping with the treatment of other rights holders and so the bill would have changed these rules to make the photographer the author and first owner of copyright in photographic works.
There was a special case involving commissioned photographs, where, if I commission a photograph for money, then I'm deemed to be the first owner of the copyright in that photograph. Thebill would have changed this, but allowed me, as the commissioning person, to make certain personal uses of the photograph unless I had agreed to the contrary.
Those are the broad contours of what the billtried to achieve.
Hon. Mauril Bélanger:
It probably is, so I'm not going to ask it. The fact that I've left it hanging there is enough.
Whoever gets it, and I hope we will be involved somehow, I think it behooves us to be prepared. Throughout the spring and the summer and this fall, I have received, and I'm sure my colleagues around the table have as well, numerous requests for meetings. I want to accommodate as many of those as I can and I want to prepare as well as I can for whenever the legislation comes, so it would be useful to know which groups have been consulted by either department. That's a factual information requirement. There's no speculation needed there. I'm just asking for this year, and also if it's possible to obtain that information--and I don't know that it is not--which groups either minister has met. I know they've met some because I've met some of the same people, but if there are others I have not had a chance to meet, it would be useful to know that so that we too can get to know. We wish to have, inasmuch as is possible, a level playing field as we embark on this.
I remember Bill C-32, back in 1997. I was involved there. It was very complex legislation. We met at least 50 witnesses--groups and so forth--and I expect we'll be facing the same thing. So any preliminary work that can be done to help us individually and collectively, as we're doing here, understand what's coming would be useful. It's in that sense that the question was asked. It was nothing nefarious.
I'll repeat the question. If it's possible to get that information, I think it would be quite useful, because I don't know all the groups and I'm sure I don't know all of
the issues. There is a whole series of them, and I imagine that some will not be included in the bill, whereas others, which have not yet come to mind, will. It is better to be safe than sorry.
Ms. Danielle Bouvet:
There are two treaties. One is aimed at improving protection for authors. It includes authors of musical works, dramatic works, that is, films, as well as all those involved with computerized applications, computer programs, video games. All those people are also stakeholders in the process.
Finally, there are artistic works and photography. All of these people, as authors, have an interest in this process.
There is also the user side, which includes schools, museums, archives, libraries and all Canadians. With the Internet, everyone has access to copyright. All those stakeholders have a keen interest in the issue.
The liability of service providers is of interests to authors, makers of sound recordings, film producers and consumers in general. Then there is photography.
As I mentioned, photographers are obviously very interested in this issue, since Bill C-60 contained provisions that had a major impact on them. In fact, anyone who has a contract with a photographer to have pictures taken, so consumers in general, could be interested in this question.
Hon. Mauril Bélanger:
A sure sign that one is aging is when one doesn't keep up with the technology, Mr. Chairman. I figure if that's a sure sign, then I'm really aging. I've just had a good discussion with my colleague Madam Keeper. She referred to how, even two or three years ago, technology that is commonly talked about today and commonly used wasn't even talked about then--podcasting, for instance.
Would it be useful for us as a committee, Mr. Chairman...? I appreciate the two briefings we've had now on the history of and the more recent changes to copyright legislation in this country. I know it would be very useful for me, and if it's not going to be offered by the committee then I'll venture to.... Due to the simple fact that I mention it today, I'm sure I'm going to get two or three calls tomorrow, offering me this briefing.
Would it be of use to have a more technical briefing in terms of the current technology the industries are using, whether it's television or recording and broadcasting or radio or copying or whatever, and perhaps with a tag in terms of the copyright considerations of each technology and the copyright battlegrounds, if you will, so we have some sort of flow chart of the difficulties we'll be facing as a committee, or that the government's currently trying to come to grips with, as they flow from technology and fit in our international obligations? We can't just legislate in a vacuum; we have to be aware and mindful of the impact we would have on our international obligations, so we need some sort of flow chart that gives us the entire stream of this, from technology, to international obligations, to the battlegrounds as we see them.
I don't know if that even exists, or if it's asking too much, but I suspect it might greatly facilitate the work of our committee when we get legislation.
Ms. Danielle Bouvet:
I hope that my answer will be helpful. It is clear that over the past few years, various industries have all produced reports that illustrate the scope of the phenomena of copyright infringement and piracy.
At the international level, the OECD, the economic organization, is attempting to assess the scope of these phenomena. I also know that the greatest problem facing this organization is exactly what my colleague, Albert Cloutier, referred to, that is figuring out what methodology should be used in order to obtain the best data to give us a measure of the scope of the phenomena.
Several reports have been published. I do not remember the exact numbers in these studies, however several studies or reports published over the past few years have referred to the scope of this problem. Of course, those who differ over this data will say that the figures are inflated, that the methodology was not appropriate and is unsuitable for the problem we are facing.
We take these studies into account. Furthermore, Canada is involved in international research into these phenomena. A few years ago, the World Intellectual Property Organization even conducted a study with a view to assisting the various member States in measuring the scope of these phenomena.
Over the past few years, we at Canadian Heritage have conducted studies in an attempt to measure the economic impact of copyright in general on copyright. Those studies are available on our website and I would be happy to provide you with the specific references in the next few days, if you so wish.
I know that work has been done on this issue. However, the problem often lies in the methodology. Copyright being what it is, that is, an area where consensus is rare, we often end up with studies that are challenged. In our capacity as officials in these departments, we must take the best of these in order to provide some direction on what would be useful in crafting policies.