Bill C-60 (Historical)

An Act to amend the Copyright Act

This enactment amends the Copyright Act to implement the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, to clarify the liability of network service providers, to facilitate technology-enhanced learning and interlibrary loans, and to update certain other provisions of the Act.

[Marc Seaman]

Does it hinder us from investing in Canada? No.

We announced in July that we'd be opening a software development centre in the lower mainland of B.C., which we opened in September. It will have approximately 300 employees or software developers by the end of January. Hopefully, that will continue to grow quite significantly.

There's a recognition that the IP regime in Canada is taking shape and that the government is taking it seriously. I think it was under the Liberals, the previous government, with Bill C-60, and I think that, obviously, we're seeing steps by this current government in moving towards that.

I think that decision to invest in Canada was done regardless of the IP regime here. It was done for other reasons, such as the strong infrastructure we have, the quality of life Canada offers, and the better immigration policies we have, because again, we're talking about onshoring people, as Bernard points out. As we have indicated, there's a shortage of skilled people in the computer sciences in North America.

Our goal was to recruit the top 1% or 2% from around the world, wherever they may be, whether they're in Canada, the United States, India, or Trinidad and Tobago, and to bring these people to B.C. to create and innovate and do some software development, recognizing that the IP policies in Canada will become stronger. We're certainly hopeful that this will continue.

No, the decision to invest in B.C. had nothing to do with the IP policies here.

Resumption of Debate on Address in Reply

[James Rajotte, Conservative, Edmonton—Leduc, AB]

Mr. Speaker, I want to follow up on what the hon. member opposite was talking about with respect to copyright legislation. As he said, it was mentioned in the throne speech, so it will be a priority for the government this fall going forward.

He obviously knows that in a minority government situation like this it will require at least two parties if not more to come to a consensus on this issue. I am wondering perhaps if he would enlighten the House about some of the specifics that he and his party would like to see in such copyright legislation. Bill C-60 was introduced in the last session, but perhaps he could identify some of the specifics that he, as the critic, and his party would like to see in any such copyright legislation this fall.

[Ken Thompson]

Thank you, Ms. Fry. The first thing, working backwards, is that the CRTC just yesterday announced that they are going to hold hearings to review new media. ACTRA has been asking them to do that since about 1999. Previous presidents, and Richard Hardacre, have all been before the CRTC and have repeatedly asked for a review of new media. And why would we want to do that? Because we need some regulation to ensure that there will be Canadian content for Canadians to see on the new media.

On your question about copyright, it's very complex. The last revision of the Copyright Act was in 1997, so we're just about due. They come along about every 10 years. We're just about due for one. There was a bill under the Martin government, Bill C-60. It offered up some new rights for performers, but you would be shocked to know that performers have no intellectual rights to their recorded performances on television and in movies. They have no way of pursuing those rights. They have no way of enforcing any kind of piracy of those rights. And that has to change. That's one of the things. And the government has promised to do that since the early 1990s.

Your final question was.... Oh, there was the distribution of digital media. You know, if any of us here knew exactly how you would distribute, we would be out on the stock exchange. We'd be putting out our IPOs. You can see that the record industry has struggled with this for years, and the film and television industry will.

Everybody is learning as they go along. There are all kinds of ways. There are technical ways, like streaming as opposed to downloading. Streaming allows you to, in essence, watch television or movies or video programs on the Internet. There's Internet TV. Downloading allows you to obtain a copy. But there are some intellectual property rights that are invoked in either of those two methods. There are tethered downloads, like rentals, where you can pull it back after you've actually received the copy, so it's time limited. You'd have access to a television program or a movie for a couple of days or even for a couple of hours.

So there are all kinds of models out there, and as Richard said, it's very complex. Everybody is very concerned about how they would go about doing it to ensure that they would get some kind of return.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

As chair, I have a couple of little questions, and I'm going to be short. This was one of my previous questions, probably two years ago.

We talk about streamlining the process. In this process, there was signing of the WIPO treaty 10 years ago. We've been five years in progress, getting the short-term things done, the short-, medium-, and long-term issues. Did Bill C-60 only look after the short term? If that's the case, and if it's taken 10 years, how long is it going to be before the long-term issues are addressed?

[Albert Cloutier]

I have to say I'm not aware of pushes that target that technology as such.

If we want to look historically at Bill C-60, if you look at the Internet service provider provisions, for example, we crafted a notice and notice regime in part because we thought that was a better way for ISPs to participate, to address peer-to-peer technology. In the U.S. they had developed a notice and takedown regime, but takedown doesn't really apply to a peer-to-peer scenario. So we try to acknowledge that maybe a notice and notice regime was something that could address that kind of technology.

[The Chair, Conservative, Gary Schellenberger]

Excuse me. I maybe should have disallowed the question across to Mr. Abbott. We have our witnesses here. At the same time, I'm going to add my two cents' worth.

Over the past years, as we've worked on copyright, I've met with pretty well every interest group from either side of this issue. I met again with a bunch of them after Bill C-60 came out, so I know some of the likes and dislikes. Usually you hear more about the dislikes than the likes.

I'll go to Mr. Fast for his questioning.

[Albert Cloutier]

I would like to clarify that we have not met with any groups to discuss future legislation. At this point we have met with groups, or groups have asked to speak to us on the things that led up to Bill C-60, and we've certainly had a number of groups reacting to us about Bill C-60. But we have not circulated proposals--

[Charlie Angus, NDP, Timmins—James Bay, ON]

Have there been any moves within the department to clarify fair use? Will there be a specific clause on fair use? Have you looked at the issues facing education authorities, above and beyond what was talked about in Bill C-60? There were still major issues and problems raised by the education community. So how are you going to define fair use in this new bill?

[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.

[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.

[The Chair, Conservative, Gary Schellenberger]

Thank you for returning.

First of all, I'd like to go over the agenda from now until October. Everyone has the calendar.

On Wednesday the 27th, as I explained earlier, CBC will be here from 3:30 until 6. Again, I might have to have one of my vice-chairs do part of that meeting for me.

On Monday the 2nd, we have another copyright briefing. If you can get the fog out of your mind about some of the things we've just heard, check Bill C-60 and you'll notice there were certain parts of Bill C-60 that weren't clear and still weren't answered. Do scan through at least the recommendations this committee put forward in the May 2004 report. I think those would be important, so we can question where we might be going with copyright and some of the bills.

On Wednesday the 4th we're talking about some museum studies. Everyone has that and objectives of this study and stuff. Let's go over some of that in the next little while and be ready for that particular study that day.

[The Chair, Conservative, Gary Schellenberger]

So in essence, if Bill C-60 had passed, or if something like that were to pass, it would only be the first step in the ratification process.

[The Chair, Conservative, Gary Schellenberger]

The second thing I'd like to ask then is this. Was Bill C-60 one part of copyright that would only fulfil one part of the WIPO? If we had passed Bill C-60, I know there were some things that weren't in there. When we did our study, the “Interim Report on Copyright Reform”, I was of the understanding that this was the first of three parts. If we had passed it, we would not have been in compliance with the WIPO; it would have only been the first step.

[The Chair, Conservative, Gary Schellenberger]

If I may, as chair, I have two questions, and I hope I can get a short answer.

In Bill C-60, it was suggested that copyright shouldn't be left up to the heritage committee and that there be a “study of the Copyright Act committee” set up between the Ministry of Heritage and Industry. Is something like that still in the works, or was there ever a committee struck?

[Ed Fast, Conservative, Abbotsford, BC]

Just to follow that up, Bill C-60 received some criticism as well. Many felt that there were certain aspects of it that either weren't broad enough or didn't deal with issues that are currently on our technological table. Reform and statutory damages was one, and digital libraries, crown corporations--there is a whole list of these items.

I'm hoping the next iteration of this bill will actually come forward with something that's going to be a substantive step forward in bringing us into compliance with some of those treaties.

Having heard your presentation, I think most of us at this table still probably don't understand the difference between economic rights and moral rights. I'm still confused. Could you be a little bit more explicit as to the differences between those two?