Bill C-11 legislative committee day 4 thoughts

The fourth meeting of the C-11 special legislative committee was held on February 28, 2012.

Witnesses: Canadian Federation of Musicians: Bill Skolnik, Chief Executive Officer; Warren J. Sheffer, Legal Counsel. Pineridge Broadcasting: Don Conway, President. Re:Sound Music Licensing Company: Ian MacKay, President; Matthew Fortier, Director, Communications. Association nationale des éditeurs de livres: Aline Côté, President, Les Éditions Berger; Jean Bouchard, Vice-President and General Manager, Groupe Modulo. Canadian School Boards Association: Cynthia Andrew, Policy Analyst, Ontario Public School Boards Association. Association of Canadian Community Colleges: Michèle Clarke, Director, Government Relations and Policy Research, Public Affairs; Claude Brulé, Dean, Algonquin College.

The first session had some aspects that were a repeat of the 16'th meeting of the C-32 committee which focused on the ephemeral recording exceptions in C-11. As I wrote then, I agree with the government on this aspect of the bill: Broadcasters should not have to pay multiple times for an internal technological detail which has the ultimate purpose of broadcasting for which they pay. Radio stations should not have to pay differently whether there is no digital copies (vinyl record) or 20 internal copies (across redundant backed-up digital audio servers). The payment should be made when they communicate that work to the public, and not for any internal technical process.

There was discussion of the existing ephemeral recordings exception 30.8, and how in subsection (4) it discusses how these ephemeral recordings need to be destroyed within thirty days. It was discussed how this wastes resources that doesn't benefit the broadcaster or copyright holders, but which is still the cheaper option to paying overlapping licensing fees.

re:Sound had a series of what it felt were technical amendments, one relating to "orphaned" works where they received a payment but where they are not currently directed to make payments to non-members. I haven't investigated this issue, and would be looking to see whether this is a compulsory license or some scenario where the collective didn't actually have the right to offer a license in the first place. I would want to look into this only because I have the perception that some collectives believe they represent all copyright holders of a given type, and it never occurs to them that there are people who quite deliberately don't want to be members and don't want a collective to be offering licenses of their works.

After a few sets of questions I found it interesting that Dean Del Mastro decided to go into details about how radio works and interacts with the current act and proposed changes in Bill C-11. While I disagree strongly with him on the Paracopyright aspects of the bill (and don't think he realises the harm to technology owners), he clearly has done his homework on the copyright aspects of the bill and can articulate quite well how it works. When he speaks about the copyright aspects of C-11 I find myself agreeing far more often than disagreeing.

The second session also had familiarity, with the publishers giving a "sky is falling" speech about how copyright needs to be straightened, and some representatives of the educational community speaking about educational fair use as well as the distance education exceptions.

As I suggest in the FAQ, my feeling is to wish a pox on all their houses.

Every time I hear someone talking about the destruction of class notes after 30 days, I cringe as the bill says nothing of the sort. It takes activities which are clearly infringing (not fair dealings, not created by the student or the teacher but someone else, etc) and allows this infringing activity for a short period of time that includes the duration of the course and exams and terminates 30 days after marks come back. This is a very generous offering to the educational community which deals with some potential complexities that would exist with distance education but wouldn't apply if it was simply carried out in the classroom (IE: playing a movie as part of the curriculum under regular educational licenses, etc).

Every time I hear nonsense about the word "education" being added to the act meaning that copying harmful to the economic situation of the copyright holder I cringe, as the bill says nothing of the sort. There are two hurdles in Canadian law: is the dealing one of the listed types, and then is it fair. The United States have a very liberal Fair Use regime which only has the fairness test, where the listed criteria are not a barrier but illustrative. With all the chicken little nonsense from publishers and collective societies, we only have to look at the success of educational publishers within the USA under their more liberal regime to know that is false.

It was discussed again whether the 6 factors that the Supreme Court has come up with to determine fairness should be embedded in the Copyright Act, similar to what had been done in the USA. This question comes up often, and seems to have universal support by anyone who doesn't object to the existence of Fair Dealings entirely. I hope this suggests that if C-11 will be amended at all (which isn't at all certain), that this amendment will be included.

Note: I will attend in person as many of these meetings as I can, and will be live tweeting them (@russellmcormond).

For the geeks: I purchased an additional cell SIM card with data, since the AWS spectrum that WIND mobile was able to obtain doesn't penetrate the walls of parliament hill. I'm on the Edge network using my Nexus 1 as a tethering hot-spot which I connect to from my ASUS Transformer (is it a tablet or a netbook? both?). Battery on the phone drains quickly, so I leave it plugged into the Transformer which has a battery in the tablet and an extra battery in the keyboard which keeps everything running for quite a long time.