Bill C-11 legislative committee day 5 thoughts

The fifth meeting of the C-11 special legislative committee was held on February 29, 2012.

The first witness of the first session gave familiar arguments. While it was the Canadian Independent Music Association, they gave a mini-me performance of what the major labels already presented: The sky was falling, and the blame was entirely from citizens not paying for music. Oh, but lets not target actual infringers, they want to go after the alleged "enablers" of that infringement. Oh, and TPMs were a must and were allegedly necessary for their business.

Pay no attention to the fact that non-owner TPMs on devices are an infringement of the owners rights, and TPMs on content are an "inducement" of infringement which should also be illegal. Business models built upon infringing someone elses property rights are not legitimate business models. While I don't think people should be infringing the copyright of the music industry, I have no sympathy for people who try to justify infringing someone elses rights alleging it is necessary to protect their rights.

The second witness was from the Canadian Artists Representation Copyright Collective Inc. and gave the familiar dislike for fair dealings or any exceptions to copyright. They want everyone to give them more money for any use of copyrighted works so collectives can act as a substitute for arts funding agencies. They didn't like the fact that Copyright requires copyright holders to go to court to sue infringers, and seemed to want everyone else to pick up the tab for proceedings which pretty much only had private benefit to the copyright holder.

The third group of witnesses was from the Canadian Consumer Initiative, speaking from the perspective of what consumers of copyrighted works and to a lesser extent what owners of technology want. The most amusing interaction was from Conservative MP Peter Braid who seemed to want to know how many consumers his organization represented, and seemed to suggest that consumers were largely unaware of TPMs. It was like Mr. Braid was unaware of the government's own consultation where the vast majority of submissions were from average citizens who were opposed to the TPM provisions being contemplated for this bill. If any single message was given to them clearly it was that consumers, and even a majority of actual copyright holders (as opposed to intermediaries and industry associations) disagreed with the TPM provisions.

Of any of the witnesses who presented today, I believe it is obvious that the Canadian Consumer Initiative represented the views and interests of the most Canadians.

The dynamic with the MPs was familiar. Conservative MP Mike Lake took the first two witnesses to task for their dislike of the various provisions in C-11 which offered some balance for audiences. He took them to task for not wanting to go to court to sue infringers, suggesting that to do what they are asking for would mean creating a one-sided bill which would only be workable if you happened to be on that side. Like Mr Del Mastro, Mr Lake has studied the bill, the current act, and the issues within copyright law in general. While I strongly disagree with them on anti-ownership TPMs on devices, and their repeating of the chicken little rhetoric about the alleged harm from non-commercial infringement, I largely agree with what they say on other aspects of this bill and Copyright in general.

NDP MP Mr. Cash and fellow musician MP Mr Angus both took time to be critical of the message offered by the "Independent" music association. They questioned just how much harm comes from non-commercial music sharing, and how TPMs would possibly help. They did agree with the association on the ephemeral recordings issue, one of the areas where I disagree with Mr Angus and Mr Cash.

While many have suggested we have already heard everything there is to be said, I believe we did hear something not often discussed with the second group of witnesses. While it took some time to get there (only vaguely clear after questions from MPs), and I didn't hear a specific reference to the section of the bill in question, there was an issue in common with a few of the witnesses.

There is a new addition to subsection 29.5 of the act which is an educational institution specific exception to copyright for performances of works (plays, music), performances of sound recordings, and on-demand communications by telecommunications. The change in C-11 would be for cinematographic works to be added to the existing list. (Note: I didn't even comment on this section when I did a clause-by-clause of C-32, only the first half of section 24 where I commented "Clarify that infringing sources should not be used in educational settings.")

In the questioning it came up that this type of change had already happened in the USA, and thus they knew how devastating to their businesses this change would be. I find it interesting how many times it comes up where the USA is used as an example of a jurisdiction that offers less copyright protection when Canadians have been falsely lead to believe for so long (by lobbiests and politicians north and south of the border) that Canadian law is weak in need of massive change to catch up with major trading partners. It seems quite obvious when you study the matter that the USA not only offers less protection of the legitimate rights of technology owners than Canada does (prior to the passage of C-11), they also have weaker copyright law.

This is an area of C-11 that I think is worth looking at more closely, including looking more closely at institutional exceptions in general. I can see how cinematographic works fits in with the existing exception, but wish Canada didn't rely so heavily on institutional exceptions in the first place. I generally see institutional exceptions as a government funding program (of provincial institutions) masquerading as Copyright. I also believe there are market based solutions (open access, etc) which Canada has been slow to adopt, partly because of our excessively strong collective societies combined with too many institutional exceptions.

The questions ended with Mr. Lake taking on Société des auteurs de radio, télévision et cinéma on their proposal for extending levies to devices and to audio/visual works. While I agree with him that levies on devices are harmful to the marketplace for copyrighted works and technology, I still believe levies on devices are less harmful to technology owners than the non-owner locks which his party supports and is already within the bill. The only way they can be effectively less harmful is if Canadians ignore the law and illegally remove non-owner locks, with it being less easy to avoid the levy on devices which would be added by manufactures and importers. I don't think that is a fair way to compare, given this is ignoring a law which the Conservative government considers extremely serious (commercially offering products/services for circumvention is the only criminal addition in the bill).

The day ended abruptly as the bells had rung for a vote. They knew before the second set of witnesses came forward, and thus that whole part of the day was quite rushed.