Copyright Modernization Act

Ms. Elizabeth May: Mr. Speaker, I rise to speak on Bill C-11, An Act to amend the Copyright Act, joining other colleagues who have found some of the aspects of this bill problematic.

I am going to approach this bill a little differently from the way some other members have. I think we need to recognize the context of where we are at second reading. This bill is going to go to committee. What I would like to do is dedicate my remarks and focus on a rather direct appeal to members on the government benches to take the opportunity to seize a victory that they could have by putting forward a bill that would have the support of all the groups that are now being critical. I do not think that is impossible at all.

We recognize that there have been some improvements. There is general agreement by all knowledgeable people in this area that we need to modernize the Copyright Act and that we have significant challenges with new technologies. I sometimes think about this place, this room, this House of Commons, and try to imagine our predecessors in Parliament in the 1930s trying to grapple with what we are speaking about today. It is all new, and it changes fast.

Almost as quickly as we might legislate this bill, we will find that we need to make additional changes to deal with new implications and new ways in which copyright becomes recognized and the way in which copyright is challenged creative rights need to be protected.

What I would like to do is concentrate my remarks not in attacking the bill so much, although I do have to attack sections of it, but with a goal of hoping that when this bill goes to committee, amendments will be allowed.

We have seen a worrying trend in this 41st Parliament; it is as though amendments to legislation after first reading are somehow incremental defeats of the government of the day, whereas in fact it is common practice in Parliaments around the world, and certainly in the Canadian Parliament, to recognize that a bill at first reading is not perfect. It can use improvement, and using the committee in as non-partisan a way as possible will bring improvements to the legislation.

When I look at this legislation and what the government has said, I see in the preamble, which always guides statutory interpretation:

…the Government of Canada is committed to enhancing the protection of copyright works or other subject-matter, including through the recognition of technological protection measures,

—and this is the important part—

in a manner that promotes culture and innovation, competition and investment in the Canadian economy;

It goes on to say:

And whereas Canada’s ability….is fostered by encouraging the use of digital technologies for research and education;

A tremendous balancing is being suggested here and is being aspired to by the government in its preamble. It falls short, but we do not need to be condemnatory; there is much in the bill that is an improvement. The problems that remain tend to focus in one specific area, and that area has been referenced a good deal in the debate today: digital rights management and the use of devices and technology such as digital locks.

That is just a preamble to my point. We also see in the very beginning of the bill, in the preamble, that the Government of Canada wants our legislation to meet new global norms. It specifically refers to the World Intellectual Property Organization, which I will just refer to as WIPO. That WIPO treaty is one to which Canada wants to adhere.

However, numerous commentators have pointed out that the legislative approach in this bill exceeds anything required by WIPO. I am hoping that the government can pull back slightly–in a significant way, actually–from the parts of the bill that members on the opposite benches find unacceptable. Really, the government has accommodated a lot of concerns and has improved the bill. I know it is virtually the same as Bill C-32 in the last Parliament, but it has gone through some improvements from its first iterations. We are close.

Government members on committee, with the direction from the Prime Minister’s Office, I am sure, taking a keen interest in this bill, could actually accommodate the different concerns of critics and emerge with a bill that would earn praise across all parts of the House of Commons.

Professor Michael Geist has been referred to in the debates this afternoon. He is a professor at the University of Ottawa and is the Canada Research Chair in Internet and e-commerce law. I found his comment quite appropriate to my own sense. He criticized the bill initially as flawed but fixable. He still holds to that view–flawed but fixable–so let us fix it.

What he said he finds problematic is that as he sees it, the bill is an omnibus bill that combines two different pieces of legislation.

The first piece is the part that I think I can speak for all members of other parties, but I think it is fair to say that most members in the House find the first bit, which he described as the copyright modernization act, to be quite acceptable, generally good. Maybe some of the restrictions go too far, but overall, it is good progress in copyright modernization.

He describes the other part of the law, which we find unacceptable, and he has given it a title, “The reduce U.S. pressure copyright act”. The problems have emerged in that area.

The problems are in two areas, and I will refer to the first. Briefly, it is constitutional. The constitutional problem is simple to describe. Copyright is clearly an area of federal jurisdiction, whereas property rights are provincial. To the extent that we have intruded into property rights, we have a problem. This has been described in a learned article published by professors Crowne-Mohammed and Rozenszajn, both from the University of Windsor, in the Journal of Information, Law and Technology in which the authors describe the problem this way:

The DRM provisions of Bill C-61 represent a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations.

Let us de-link them. Let us protect the rights and protect copyright reform without acceding to pressure from U.S. interests, which want to have excessively restrictive controls in the form of digital locks. That is setting aside the constitutional issue.

The next set of concerns I would like to raise really relate to public policy concerns. One of the very strong groups of critics on this matter is the Public Interest Advocacy Centre. I should confess that the Public Interest Advocacy Centre was the organization that initially brought me to Ottawa in 1985. I left a law practice in Halifax to become senior general counsel to the Public Interest Advocacy Centre, not really a conflict of interest but a convergence of my history. I wish to quote their legal position:

Consumers enjoy certain rights to use content without infringing copyright. The presence of technological measures doesn’t change that, and neither should anti-circumvention laws. Consumers must be able to circumvent technological measures, like DRM, providing that their access to the underlying content does not infringe copyright.

It goes on to say, “Anti-circumvention laws shouldn’t statutorily undermine the values that are invoked in public policy goals such as consumer welfare, free speech, and innovation”. That is a public policy concern that comes from the Public Interest Advocacy Centre.

As members throughout the House will know, the bill has been criticized by many groups, but those criticisms are not in multiple sections of the act. They focus very clearly on the problem of digital locks.

Another group that has taken the digital lock section in its crosshairs is the Canadian Internet Policy and Public Interest Clinic, also based at the University of Ottawa. They point out:

Unfortunately, the bill also succumbs to U.S. pressure and makes fair dealing–including the new exceptions for the many ordinary activities of Canadians–illegal whenever there is a “digital lock” on a work. A digital lock will trump all other rights, forbidding all fair dealing and keeping a work locked up even after its copyright term expires. Overall, these digital lock provisions are some of the most restrictive in the world.

This again is an issue where we are exceeding what is required of us to meet international norms under the WIPO Treaty. The digital lock provisions go too far.

We have heard from members opposite on the government benches that the bill needs to do all these things because we must protect Canadian jobs. I just want to speak to that.

The Canadian arts and culture industry, as we realize, is a very important part of our economy. It is a $46 billion industry annually. It employs over 600,000 people. The government should take note of the fact that most of the professional organizations that represent the creative force in the arts and culture community collectively and separately have called on the government to amend the legislation, have urged it to amend the legislation.

I will not read out all the names of the organizations, but there is an organization to which I also confess to belong, the Writers’ Union of Canada, but beyond that there is also the Royal Canadian Academy of the Arts, Société québécoise des auteurs dramatiques, and the Writers Guild of Canada.

Therefore, I ask the government to consider, why would it be that just about every organization in the country representing creative people appreciate some portions of the bill and find others go too far? With that, I ask the hon. members opposite to please consider amendments, improve the bill…