C-32 committee meeting 12 thoughts

There were two very different panels for meeting #12. In the morning was two representatives of the Canadian Civil Liberties Association (CCLA), and in the afternoon was a panel of writers (English and French) and collective society Copibec, Quebec's equivalent of Access Copyright.

Before anyone had a chance to speak, Carole Lavallée had a few complaints about the first panel. First, there was only one witness, and second that the lawyer for CCLA was also the lawyer for Retail Council of Canada (RCC). It was suggested that it was inappropriate for Howard Knopf to appear twice, and this theme was repeated by a few of the MPs and later witnesses in the second panel.

I agree we need to hear from more voices heard in the C-32 committee hearings. I've commented in my meeting notes that supporters of collective societies claiming that any expansion of fair dealings reduces revenue have been heard multiple times from overlapping associations.

I don't think it can be said that the RCC and CCLA are the same voice, or even a compatible voice at various times. Mr. Knopf is a busy lawyer in Ottawa, and he even said that he likes to keep it clear what client he is representing. He didn't answer a question posed to him by Mr. McTeague that wasn't aimed at the CCLA.

While I have no complaint about multiple witnesses harnessing the skills of the same lawyer, it was very unfortunate that there were not additional witnesses in that first session. The chair mentioned that there were 170 or so witnesses that had put their name forward, and that he did not expect the committee would hear from them all.

I should probably not suggest the obvious, but I was sitting at the back of the room and would have been a compatible witness to the CCLA. I suspect there are many other witnesses that would be in the same situation, willing to speak with minimal notice in order to be assured to be heard at all.

The message from CCLA not surprising. They discussed how they represented producers and consumers, and the fact that these groups aren't as separate as they once were. They supported the enhanced protection of freedom of expression offered by adding parody and satire to the first test for fair dealings. They believe the bill should go further to use the language "such as" so that the list is illustrative rather than exhaustive.

They were sceptical of the special language around educational use of publicly accessible material, given what it should suggest for non-institutional use (IE: would it suggest that others have to ask for additional permission to access material already clearly made publicly accessible). This discussion has come up in the past, with the threat that collectives like Access Copyright will try to demand levies for the use of works that aren't even in their repertoire. I'm still not sure why this is any more morally defensible than commercial copyright infringement.

They had many problems with technological protection measures in the bill. They did not believe they should trump users rights, and had a focus in their presentation on privacy rights.

The most interesting question for this panel came from Ed Fast, the recent permanent addition to the committee from the Conservatives (replacing Kelly Block). He suggested that other witnesses have said that any allowance for limits to TPMs would harm its effectiveness. Tools would need to exist to allow people to exercise their fair dealings rights, and these tools could be abused to infringe copyright. He suggested it was a matter of contract, and that these should be honoured.

Obviously I have many problems with that.

First, TPMs are already ineffective as a way to reduce infringement. For those who want to infringe copyright, they will never come across a TPM as pretty much all content is available to infringers in an unlocked form. TPMs aren't even a speed bump for people who want to infringe copyright, and it is only otherwise law abiding citizens who are impacted by TPMs.

The second obvious statement is that if this is all a matter of contract, why isn't legal protection for TPM's being added to contract law? I made this suggestion in my own submission. Which law is alleged to be violated when a TPM is circumvented matters. Clauses in a contract can be enforceable, unenforceable or even illegal (contrary to some other law). When someone violates a license agreement they are not automatically infringing copyright, and there are many other possibilities.

Treating a TPM protecting a contract as if it were a matter of copyright allows the holder of the keys (nearly always a content delivery platform manufacturer, not the copyright holder) to effectively circumvent in software all the balance that exists in contract, copyright and other laws. To anyone that respects the balance in our larger body of laws, this should be considered a major problem.

A third issue is that technology can not tell the difference between infringement and creativity. You record things, you manipulate/edit things, and you copy/distribute/communicate things. Any technology aimed at reducing infringement necessarily reduces creativity. The difference between infringement and creativity must be left as a matter of law to be decided by humans, otherwise these technologies will greatly harm creativity and innovation.

The panel of writers and collective societies had a familiar message, and that was primarily that any expansion of fair dealing would allegedly reduce revenues to their members.

They said that locks on content didn't help, and didn't want to be pushed to use them. I've had discussions with members of PWAC in the past, and they seem to have not yet brought in any technical advisers. There is a big difference between a paywall (locks on server, keys managed by owners of server) and the type of thing we see on some eBooks (lock on content to reduce interoperability to specific brands of access devices, non-owner lock on devices, keys held by device manufacturer -- not owner of copyright or owner of device). There are many people in the technical community that would be willing to help them, but given they have demonstrated hostility to the technical community it is hard to move forward.

Questions from Dean Del Mastro and Mike Lake were the highlights of this panel.

Mr. Lake explained how our current law is a graduated response: notice sent, and if this doesn't solve the problem then the rights-holder has a right to take alleged infringer to court. Given this topic came up on Tuesday, it may become a common theme.

It is critical that those who have forgotten what copyright is are reminded. It isn't a magic tree that money grows on, or a government funding program. It is a series of activities (section 3, 15, 18, etc) which require permission if done with a copyrighted work. If the activity is carried out without permission, the copyright holder has the right to sue. There are some exceptions to copyright (fair dealings and compulsory licenses), and there are a few narrow acts that are criminal in nature, but everything else falls into being a right to sue an alleged infringer.

Mr. Del Mastro reiterated that statutory damages discourages infringement, and that a notice-and-take-down regime was unnecessary. He also suggested that this second group of witnesses didn't understand fair dealings, something I strongly agree with.

As to whether a few lawyers are claiming that these minor fair dealings reform violated the Bern/WTO/TRIPS 3-step test, Mr. Del Mastro wasn't surprised given he has heard from a hundred lawyers who have given 100 different opinions.

Personally I think it is embarrassing to suggest that the minor fair dealings reforms proposed in C-32 don't conform to the 3-step test. I may not agree with them all, but I still believe they pass that test.

The 3-step test is part of the Berne convention, and is articulated in Article 13 of TRIPs as: "Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder."

The Supreme Court of Canada has identified six non-exhaustive factors to assist a court in determining whether a specific use is fair, which is the second part of the fair dealing test: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.

People should notice the overlap, given the 6 non-exhaustive factors are simply an expansion and generalisation of the 3-step test. Some have suggested that this type of generalisation is now allowed as it does not quality as "certain special cases", but to believe this is to believe that Canadian law has never adhered to the Berne convention. I suspect we could find a lawyer who believes this, but that is another way of saying that you can find a lawyer or another human being that believes pretty much anything.

I believe the lack of the "such as" language is the source of the misunderstandings about fair dealings. Some groups focus on the first test, thinking that once something fits a criteria that it doesn't need to be fair. I believe it would be helpful to not have a first test, so that everyone would focus on and eventually understand the second test. They will realise that something is not considered fair under fair dealings if it conflicts with a normal exploitation of the work or unreasonably prejudices the legitimate interests of the rights holder.