Bill C-11 legislative committee day 9 thoughts

The ninth meeting of the C-11 special legislative committee was held on March 7, 2012.

They say laws are like sausages, and you should never watch either one being made. This last day of witnesses before committee moves to clause-by-clause consideration on Monday was likely the oddest day so far, but still very interesting to watch.

The panel of witnesses had already been merged into one, so you had the Recording Artists' Collecting Society and Artist' Legal Outreach mixed in with Microsoft and BSA (IE: Microsoft again, plus Apple, Adobe, and the usual suspects when it comes to infringements and inducers of IT property rights infringements and anti-competitive behavior in the software marketplace).

Everyone was told they would only get 5 minutes, but after the first two groups presented the bells rang and MPs needed to go for a vote. Hansard will show some of the interesting procedural things that were happening in the house, including a time allocation vote in relation to that other omnibus bill, C-10.

Much time passed, with witnesses, observers and staffers hanging out in committee room. When MPs returned the witnesses were then told they would get the remainder of their 10 minutes for presentations, but there would be no time for questions before MPs needed to head back to the house.

The Toronto and Washington BSA witnesses gave their presentations of 10 minutes each, then we returned to the remainder of the 10 minutes for the first two witnesses.

BSAs focused on technological measures and a claim that exceptions for legitimate uses create loopholes. No surprise they wanted more examples of their infringements of other peoples rights to be protected under law than is already the case in the made-worse-in-Canada technological measures aspect of the bill. Claims that the section 41.21 regulations deal with everything is a slight of hand, given we know that the process to try to get legitimate exceptions through regulation will be costly and will be very confusing to technology owners as to what is legal or not.

They made the standard Ficsor/Sookman/Gannon false (and pro-infringement) claim that WIPO treaty ratification required access controls and prohibition on anti-circumvention devices. They said those who build their business models on infringement should be liable as infringers, but of course were talking only about copyright infringements and not the fact that an increasing component of their business models are built on the infringement of others rights.

All-in-all nothing surprising or all that interesting in their testimony.

RACS wants an extension of the private copying levy. They don't like the expansion of fair dealings, and are concerned about how the User Generated Content provisions interact with moral rights.

They don't like the lessening of statutory damages as they want damages to be proportionate to infringement, except that the whole point of limiting statutory damages in cases of non-commercial infringement was to create some level of proportionality. We always need to remember that actual damages are available, so if there is actual economic harm then things will always be proportionate.

They support an interpretive scope to exceptions, wanting to import the Berne 3-step test. I find it odd that so many lawyers confuse the Berne 3-step test for creating exceptions with the Supreme Court of Canada 6 factors (Or USA's similar 4 factors) for determining if a specific use/dealing is fair. The Bern language doesn't make sense as a fairness test, and what Berne says is effectively emended within the 6 factors. It is almost as if they want the same thing that the rest of us do with adding the 6 factors to the Copyright Act for clarity, but are unwilling to say it using the same language for fear they might be seen with agreeing with us.

Martha Rans from the Artist's Legal Outreach (Her speaking notes are available on her site) was the most interesting witness for me. While a lawyer, she has that NGO/activist passion about her that is familiar to me as a digital rights activist. Some might mistake us for being on opposites sides of the Copyright debate, but this isn't how I see it. There is far more that we agree with than disagree.

We don't like that copyright is replacing arts funding. We think the bill (and I believe the existing act) is too complex for individual artists (or regular citizens) to interpret. We don't need more lawyers, and more lawyers won't solve the problem.

We need clear rules. This is a complaint I have had and articulated in comments to the earlier Section 92 report where I said that "simplifying and clarifying the act" should be the first and overriding priority of any amendments to copyright.

There is concern with the UGC provisions, but I will need better explanations of the concern as I don't see it. Maybe I misunderstand the bill, or maybe others do, but it appears to me to apply to the follow-on creator and not to YouTube, even if that follow-on creator posts to YouTube. It ensures that the high-powered lawyers from the entertainment industry won't be going after independent and amateur creators, something I consider to be a good thing for the arts community. We know the direction that the entertainment industry has been moving, and attacking artists from multiple angles seems to be squarely in their playbook.

She also spoke about educational exceptions, and how that won't solve their funding crisis. If we were focused on institutional exceptions we would fully agree, as I believe that institutional exceptions are provincial education funding masquerading as federal copyright. I fully support removing education institution exceptions from the Copyright Act. I disagree on the addition of the word "education" to fair dealing, and believe this is a helpful addition for all concerned. I believe the language "such as" would be better, but that the new additions to fair dealing are a good if minor step in the right direction.

She spoke about how the growing use of Creative Commons indicates people are interested in dealing with copyright in different ways. She suggested the emphasis on enforcement is a distraction, and that creators are left out of the conversation. She said that enforcement is not the answer to challenges that technology brings: that creators shouldn't have to litigate in order to be able to create.

As someone from the FLOSS sector, which predates creative commons and similar movements by decades, I obviously agree. Much of the lobbying you see from groups like BSA are aimed at their competitors in our sector, and not people who can even remotely be considered bad actors. If anything, we believe we have a far better and socially/economically responsible solution to the alleged harm from software copyright infringement than their false enforcement solutions.

I walked out of committee speaking with Ms. Rans, and we had a very interesting conversation about how we hate the us-vs-them language that has come out as far as creators and audiences of creative works.

We spoke about a number of other policy areas. I said that the private copying regime is counter productive, and they shouldn't be pushing for its expansion. While we didn't have time to discuss, I believe that while a levy on a device might bring in tens of dollars that it would induce hundreds of dollars in losses to artists. This regime is not well understood, and a majority of people who aren't copyright experts believe that the levy buys and pays for activities which are actually infringements. Extending the levy to devices and making it more visible, or extending the harm to more creators than only musicians, is a very bad idea for the arts community. I only wish the arts community would stop asking the government to shoot them in the foot.

I also agreed with her that the federal government should be funding legal clinics like hers (and I would say groups like CIPPIC as well). As the federal government makes Copyright more and more unnecessarily complex, they have some responsibility to pay at least part of the costs which they are imposing on Canadians. The big companies have their expensive lawyers (some already mentioned :-) to promote their narrow interests, but the rest of us need a way to defend ourselves from them.

Maybe if there was a budget item associated with it they would finally get to prioritizing "clarifying and simplifying the act", and getting all those arts and educational funding programs out of the copyright act and into proper accountable and transparent funding programs.

I could go on, just as I would have enjoyed spending more time chatting with Ms. Rans and her friend from CARFAC (privacy being kept) about these areas of policy. While this stage of the process of the bill may be over, it is not like these conversations won't continue.