Bill C-11 legislative committee day 7 thoughts

The seventh meeting of the C-11 special legislative committee was held on March 5, 2012.

Most of the discussion seemed very familiar, with the interactions from MPs matching what I wrote on the weekend as the theme that has emerged from committee. Near the end of the day we heard Mr. Lake going into details of what the bill actually says, suggesting (quite correctly in my mind) that many of the fears that some of the witnesses have about the copyright bill are simply not reflected in the bill.

Conservative MP Phil McColeman continued to talk about the alleged cost of "piracy" and those who "continue to steal", although Stephen Stohn from Epitome Pictures Inc. offered answers clarifying that infringement was nothing at all like "stealing" a physical DVD from Best Buy (speaking about marginal costs/etc).

I find it interesting that the people most likely to use the "theft" language in relation to copyright are the first to be trying to justify infringements of IT property rights which, while still not being "theft", are far closer than copyright infringement.

Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) said what you might expect a collective society only dealing with reproductive rights to say. When all you are is a hammer, you want everything to be a nail. Any conversation about rights that SOCAN may be involved in they didn't show much interest, meaning it isn't the overall revenue streams to music authors, composers and publishers they are most concerned with but how much money flows into them specifically. This is one of the failures of our excessive collective society based system. We need collectives that are there to represent creator and non-creator copyright holders, not the interests of the collective itself, and definitely never be allowed to be in conflict with the interests of creators.

Elliot Noss from Tucows did a very good job following-up on much of what Jacob Glick said in the previous meeting. He spoke about the benefits of the Internet to many aspects of the economy and society as a whole. On policy he focused on the harm which legislators could inflict on the Canadian economy, and that large part built on top of the communications infrastructure of the Internet, by over-reaching copyright legislation. He spoke about foreign businesses wanting to find out the Canadian climate and if some of the harm we are seeing in other countries (USA mentioned a few times) is being imported here. He spoke about how it would be better for Canada to have a more reasonable regime. He specifically said it is businesses we would all agree are legitimate, with us talking about Canada being a haven for innovation and not a haven for copyright infringement.

Given all the extremist proposals from the music industry and other witnesses attacking technology providers and innovation in general, I can understand why he focused on the harm that might be added to the bill that more directly impacts his company, rather than the harm in the bill from technological measures which impact other sectors and individual owners more.

Shaw is another one of the witnesses that represent multiple parts of what are often incorrectly thought as separate stakeholder groups: they are creators, broadcasters and Internet service providers. Shaw is looking forward to full implementation of notice-and-notice, including the required notice format and fee structure for copyright holders to pay to deliver notices. They want clarity on provisions to enable network PVRs (copy clearly permitted, but communication not clear), and want clarity on "making available" language which may confuse private communication with "to the public". All reasonable requests for clarification.

Stephen Stohn from Epitome Pictures may have been one of the more confusing witnesses. He made a thinly veiled reference to Mr Geist saying he is not a university professor with theoretical ideas on digital distribution. Clarifying at one point that he is friends with Mr Sookman, he repeated some of what many consider to be misinformation from this lobbiest. Much of Mr. Stohn's feelings on things like the harm from infringement (clarified it wasn't like "stealing" physical goods) or mashups (likes them except when someone else making money) would match far more closely to what Mr. Geist has to say than Mr Sookman. Sookman tends to abuse chicken-little rhetoric to claim non-existing problems exist, or to inflate smaller problems out of proportion. He is one of the lawyers I mention in my brief as being an enabler of infringements of IT property rights. I wonder how different Mr Stohn's testimony and understanding of the legal reality would be if he had a different and less biased lawyer as a friend.

Directors Guild of Canada supports the submission from the Canada Council on the Arts, which was more an arts funding document than a copyright one -- a familiar theme. They abused the "theft" language, and wanted to talk about authorship of Audio-visual works. They want writers and directors to be considered authors (no surprise there), something that ended up soliciting discussion with Mr. Strohn who suggested it should be producer. While each was presenting their own interests, this is a topic ripe for clarity at the international level via WIPO. It appears that different countries have very different ideas on this policy, which has to cause major problems with the international motion picture/television markets.

Writers Union, as a good Access Copyright devotee, wanted to do a little chicken little presentation about the word "education" being added to fair dealings. They discussed at one point how they feel they can't count on human behavior, suggesting that people expect everything to be "free". They claimed that universities going to Access Copyright competitors was somehow part of that "free", although I think the right way to think of that is "free markets" -- something the writers union seems opposed to.

The interaction with Mr. Hollingshead during questioning was interesting. When asked about incorporating into the Copyright Act the 6-factor test set out by the Supreme Court to determine fairness, he said he wanted market impact to be the primary factor. When Mr Lake asked him to prioritize the list of factors, reading out the factors (which get to the market impact through various angles), Mr. Hollingshead said he didn't want to rank the factors even though his complaint was that the supreme court didn't rank the factors. In general his testimony seemed to be about a lack of trust he has in students, educators, the general public and judges. I don't know that there is any legislative change that can be made to amend his lack of trust of Canadians.