Digital Copyright Canada

I tried to attend this meeting in person, and ended up sitting on a ledge at the window near the doorway. The place was packed, with the room only set up to have less than 20 media or general public in attendance. My hope is that future meetings will be scheduled in a place that allows more people to attend, as I find I get more out of attending the meetings in person than I can from the online streaming.

I will take a second two hours to listen to the audio (See the webcast icon beside the meeting numbers to access recordings) since I was unable to understand some of the presentations. Sitting at the window meant that I didn't have access to translation, and much of the conversation was in French.

There were two panels on Monday. While the second panel could be said to have a theme of lawyers, I'm not entirely sure what the theme of the first panel was. We had Roanie Levy from Access Copyright, Sophie Milman and Annie Morin representing the Canadian Private Copying Collective (CPCC), and Brian Isaac from the Canadian Anti-Counterfeiting Network (CACN).

I wasn't surprised by what Roanie had to say, as it was similar to what I predicted earlier in the day. While it will be interesting to get a transcript of the exact words, I am pretty sure she said that no dealing that is free is fair. I'm not sure if this was a general statement suggesting the abolishing of the concept of fair dealing, or just a special case to disallow one specific type of entity (educational institutions) from being able to make use of any fair dealings that otherwise exist. While I agree that educational institutions don't need any special fair dealings (I oppose institutional exceptions), I equally disagree that institutions should be exceptions to the exceptions. Educators should be able to step into the shoes of their students and do anything that would be legal for those students to do inside or outside the institution. How copyright law applies to students should be the same inside and outside of the classroom.

The presentation from CPCC was familiar. Someone representing an intermediary (Annie Morin from CPCC) brought along an artist (Sophie Milman) who spoke about the need for a specific revenue stream to support the work of artists. This presentation will be very familiar, as it was identical to the types of presentations that you would hear at Heritage Committee when asking for arts funding. If this was Heritage committee, and the presenters were asking for the type of support that Canadian creators appropriately deserve for their contributions to society, I would be cheering them on and offering whatever political support I could. This was, however, a committee hearing on a Copyright bill. I believe we must remove government funding programs from Copyright law, whether for musicians or the educational sector. We should not expand existing ones or add more, as having government funding programs embedded in copyright law will always lead to harmful misunderstandings and unintended consequences.

I have considerable problems with the message from CACN who conflate counterfeiting (an offence against the recipient of product/service) with activities which are de-minimus non-commercial infringements of exclusive rights (an offence against the holder of the statutory monopoly, if such an offence legitimately exists). These are very different concepts, and it has become clear to me that this organization wants to abuse the severity of counterfeiting as a distraction to push through changes in the law which politicians might otherwise not support.

While I disagree with what CACN has to contribute to this debate, I don't think the process at the committee was fair. While Bill C-32 was passed at second reading, and creating and expanding compulsory licensing regimes was not part of the bill, this is the discussion that dominated the questions. This meant that politicians focused their questions on those representing AC and CPCC, barely asking Mr. Isaac any questions. I think there are many things he should have been asked if the MPs were fully briefed on the participation of this organization, including asking him to define for the record what he means when he uses the word "counterfeiting" and how that is quite different than how other people might use the word.

Part of the problem is that these meetings are not being grouped by themes, and thus MPs aren't able to make the most out of the witnesses that are being brought before them.

In the second panel an additional problem became obvious. The MPs had a table of contents from a large report being submitted by Intellectual Property Institute of Canada. While they had Glen Bloom, Chair, Copyright Legislation Committee (Technical) as a witness, they had not yet read the report and thus could not take full advantage of this witness. I really believe that submissions should be delivered first and read by committee members, so that questions can be used to clarify reports rather than asking questions that would have been no different than if this were another round of the pre-bill consultation process.

The remaining witness was from Association Littéraire et Artistique Internationale (ALAI Canada), with Ysolde Gendreau (President) offering a general message that sounded fairly similar to what Roanie had to say earlier. The suggestion was that the fair dealings reform was inappropriate, and that we should have a far more limited regime. She suggested numerous times that she thought the C-32 reforms might not pass the Bern/TRIPS 3-step test, which is amusing considering nearly everyone agrees that the flexible Fair Use regime the USA uses passes the test. If a flexible Fair Use regime passes the 3-step test, then it should be blatantly obvious that the far more limited reform proposed in C-32 would pass the test.

I may not be a lawyer, but I can tell when a lawyer is acting as a lobbyist and offering what she would like the law and international obligations to be rather than what the law actually says or what those obligations are. I find it interesting that we seem unable to agree on the facts and debate various policy options, instead of starting by promoting incompatible sets of "facts".