Calgary — Round Table and Public Hearings on Copyright

Date: July 21, 2009 1:30 p.m.

Location:
Southern Alberta Institute of Technology
Calgary, AB

Principals: See participant list

Subject:
Minister of Industry, Hon. Tony Clement holds a round table and public consultations on copyright, South Alberta Institute of Technology

Download: Audio Recording (MP3, 39.3 MB)

Transcript

Colette Downie: My name is Colette Downie and I'm very happy to be here. I am the Director General of the Marketplace Framework's Policy Branch responsible really for copyright policy at Industry Canada, and my colleague, Barbara Motzney, is my counterpart at Heritage. You'll see that we have translation services set up at the back. So please feel free to participate in the official language of your choice. And just to make sure that the translation is of the best quality possible, we just request that you speak clearly and slowly.

And as noted, you will have seen on your invitations that we're recording this session and we're going to be posting essentially a Podcast on the Website of this session as well as all the other round tables, and it will be translated as well and transcripts will be available as well on the Websites. But just because it's being recorded, we request that you identify yourself and your organization when you speak just so it's much easier for the folks listening afterwards to know who was saying what. We're expecting this to last about 90 minutes, the discussion today, and shall we start with a round table perhaps?

Hon. Tony Clement: I'll just say a few words to start things off. But thank you very much and let me — it's Tony Clement for the purposes of our folks who are doing the recording — let me thank you for taking some time to be with us today. As you know, may know anyway, yesterday James Moore and I commenced the consultation on the Copyright Act with a similar round table in Vancouver, and we will be, he and I both together and separately will be engaged in other similar round tables across the country as well as having town hall-style meetings including an electronic component in some of our major cities. So this is quite an extensive consultation that we are running and we hope to have all of that wrapped up by September 13th.

Now, some of you may have some prepared remarks which I certainly encourage, or off-the-cuff is fine too, and if you so desire you also have the option of remitting to us more prepared submissions. It sounds very judge-like, but you know what I mean. Just your thoughts, you pensé, in the future as well right up until the 13th of September or thereabouts. So don't feel constrained that because you're here you can't submit something later. You can do that. We're encouraging as much as we can those kinds of thoughts to evolve over the period of the consultation as well, and the fact of the matter is we're trying to use as many fora as possible. So obviously, we're here face to face but now that we are live and doing this, there's also a twitter account that is operational where people are tweeting on this and of course there are blog spots and various other things that are going on in the world of cyberspace which will assist us in collecting information and opinions and thoughts. So this is a multimedia enterprise.

Voice of Translator: Welcome to everyone. If this is your choice, if you want to speak in French, go right ahead. It's fine for me.

Hon. Tony Clement: When I listen to you, I get a sense of what you think should go into an updated Copyright Act. Now of course let me just say that clearly this has been… this is the nth attempt, I'm not sure what number it is in terms of changing our Copyright laws. The most recent attempt was about this time last year with Bill C-61. James Moore and I obviously in our mandates as Heritage Minister and myself as Industry Minister are working together to put our iteration of what a Copyright Amendment Act or a new Copyright Act would look like.

So for the purposes of this consultation, you can of course if you have an opinion about C-61, by all means register your opinion about C-61. But C-61 doesn't exist anymore, it obviously died with the last Parliament, and if you think that there are other ways that we should frame new legislation, by all means please bring that to our attention as well. Don't feel constrained by the formulation in C-61. James and I are of the view that already some aspects of that Bill are out of date such as the movement of technology. If Jim Prentice and Joseé Verner a year and a half ago were talking about tweeting or twittering, people would have looked at them like they'd just eaten bird food or something. But such is the nature of the technology, that it's changing so rapidly.

So we in that sense don't feel constrained by the references to technology in that Bill because already some of it is already out of date. So I guess I'm encouraging more of a root-and-branch principle-based approach to Copyright legislation, how do we balance — everybody talks about balance — how do we balance the rights of creators with the rights of consumers with the enablers who bring creators and consumers together, how do we protect the public interest, how do we protect the Canadian interest? These are all general issues of immense importance when we look at this.

As the Industry Minister, I'm also concerned about our ability as a nation to be competitive, to be innovative, to fit better in the digital age in which we find ourselves. I've launched simultaneously a whole strategy of making Canada the number one digital economy in the world, and so I do see this particular piece of legislation as a portion or a part of that discussion, although obviously the digital economy means more than intellectual property and rights protection, but at the same time you can't have a digital economy without addressing some of those issues.

So that's a long way of saying welcome, a long way of saying we want to have your points of view. The way we handled yesterday in Vancouver was we did go around the table. So I'm giving fair warning to Lee that we're going to do the clockwise approach and René gets the last word. But I'm hoping at the end that we'll have a little bit of time for more of a free-wheeling discussion as well. So with that, Lee, I'd love you to get the ball rolling.

Lee Webster: Great. Thank you very much. I have a few prepared words. My name is Lee Webster. I'm a partner with the Toronto-based law firm of Osler Hoskin & Harcourt. I've been practicing IP law for 25 years. I'm here today in my capacity as Chair of the Intellectual Property Committee of the Canadian Chamber of Commerce and I also sit as a founding member on the Steering Committee of the Canadian Intellectual Property Council.

My practice has focused on IP for over 25 years and I thank you on behalf of the Canadian Chamber for the opportunity you've given us and others to appear before you today. I hope that today's session and the other round tables which have been scheduled for this Summer are helpful.

As a personal observation, I am surprised, perhaps pleasantly surprised to see that Copyright reform has become such a hot and debated topic in this country. It was not so long ago that the Copyright Act contained references to long-dead technology such as perforated rolls, punched rolled steel cylinders used in music boxes in the 1880s and 1890s, and it only took 100 years to get those references removed from the Act. I hope it doesn't take 100 years to get these amendments enacted. Copyright reform is long overdue. The rollout of the Internet and the ease at which it works, it distributes music, words, pictures, it can be distributed, it has broken open traditional models and put into sharp focus the underlying principles associated with traditional IP law.

We are here today to engage in a discussion of how Copyright reform should be implemented to amend our laws to fit the digital age, the last somewhat major reforms being implemented in the days when the greatest fear of music rights holders were the copying of cassette tapes on dual tape recorders.

I'd like to make a few points. Copyright reform presents a multitude of issues upon which reasonable people can differ. There are many voices who loudly and with a reach of elbow through technologies such as messaging, blogs and tweets argue that Copyright and other IP rights are overly restrictive. They are of course entitled to their opinions. However, I can tell you as a practicing lawyer, I know that those who argue the loudest for the free dissemination of works often complain the loudest when their works are taken without compensation.

We also hear that Copyright and, more broadly, other intellectual property rights are stifling; they constrain the free flow of information and consequently are somehow bad for society and impede development. I've heard university librarians assert this position. On the other hand, universities are in my experience some of the more vigorous proponents of IP rights as a foundation for commercializing their inventions. One's views of IP are often skewed by the side of the telescope one is looking through.

I urge you in your deliberations to bear in mind that IP rights, including Copyright, are there for a well-recognized purpose. One must not lose sight of the fact that Copyright acts as a reward for creative effort. The concept of creating something and giving it away for free is meritable, however like it or not, it is simply human nature that rewards/stimulates creativity. Copyright also does not restrict the flow of information, simply the Copyright on the work. Copyright protects form, not substance. Copyright is not an IP right that protects just big business. Individuals and SMEs benefit. Copyright also benefits authors, musicians and artists.

Canada has been lagging in IP reform. The Chamber considers that we are now a bit of an embarrassment; reform is long overdue. Canada adopted the World Intellectual Property Organization Copyright Treaty and Performance and Photographs Treaties back in 1996. Over two years ago, the Standing Committees on Industry and Public Safety both recommended that Canada's IP laws be reformed quickly not only to restrain the flood of counterfeit goods into Canada, but also to bring Canada's Copyright laws into conformance with today's technology and international standards. I appeared before both Committees and I can say that support was there from all parties. The government's response to these reports was positive and for the first time in at least my living memory IP reform appeared in the Throne Speech.

The Canadian Chamber subscribes to the following principles that were set out in the introductory sections of Bill C-61. Specifically, number one, the Copyright Act supports creativity and innovation that is important to the knowledge economy. Two, the exclusive rights conferred under the Copyright Act provide rights holders with recognition and remuneration that are essential to support such creativity and innovation. Those rights must be balanced with the ability to ensure that consumers have access to and ease of use for those works. Three, the benefits of Copyright protection are enhanced when countries adopt coordinated approaches based on internationally-recognized norms, and we believe that those norms are reflected in the WIPO Treaties. Four, Copyright protection afforded under the Act should be enhanced including for the recognition of technological protection measures in a manner that promotes cultural innovation, competition and investment.

We urge the discussion not be clouded by vague accusations that Canada is somehow acting under the dark hand of the United States. We urge the government to look not just at the U.S. experience, but frankly to the rest of the world, Australia, Japan, Italy, France, New Zealand. We agree with a made-in-Canada solution but that solution must make sense and we urge you to look to the experiences of other countries that have reformed their Copyright laws.

We believe there's quite a bit in the legislation that's not controversial, at least in Bill C-61. Let's deal with the controversial issues head on, but there are matters that can be addressed that are not controversial that are difficult. Also, we welcome the inclusion of a review process in the legislation. If there is something enacted that does not strike the proper balance between creativity and reward, let's implement a review process where imbalances can be remedied once we've had some experience living with the legislation.

Lastly, a word on balance. I have mentioned the word "balance". Everybody mentions the word "balance", the most over-worked word in the Copyright debate. However, balance is important. The balance is not just to get the benefit of Copyright… to get the benefit of Copyright under the guise of information dissemination or because of vague fears of big business or the hand of foreign governments. The balance is not concocting a right for someone to take away the right of another. The balance is simply this: It is that of balancing a proper reward for creative effort.

Again, I'd like to thank you for the opportunity to appear today. We at the Chamber look forward to working with you to ensure that the correct balance of a reward for creative effort is struck, and the time for delay is over. Thank you.

Catherine A. Campbell: I was part of the original discussion in Canada around the WIPO Treaties and around the consultations that took place in early 2000 around the discussions around Bill C-60, and I think we are making some significant progress. However, I want to pick up on a few of the comments made by my colleague, particularly in relation to the question of balance and the perception of certainly the public in relation to the notion of balance in the Copyright Act.

We really believe at the Publishers Council that the review, that the view reflects an inaccurate perspective on the realities of intellectual property, that the protection of a rights holder's interest in their creation necessarily deprives the public of rights to enjoy that creation. In fact, the Copyright Act is to encourage a creator to put his work or her work out into the public with some confidence that its integrity will be maintained and it can be enjoyed by the public.

The assumption seems to be that every right given to a creator, every power given in intellectual property is somehow taking rights away from the consuming public or the user, that it's a zero-sum game in that regard, and that couldn't be further from the truth.

The other issue relates to the whole concept of user good and public good and certainly public good is served by the health of our intellectual property businesses, by commerce in general, by developing strong digital strategies, being competitive in the international environment. All of those things are significant benefits to the public good, and there is no question that there will be some uses that users would like to put intellectual property to that are just not consistent with either the public good or the good of the rights holders.

The needs of all those users are scarcely homogeneous and so that does put a big challenge in front of those trying to draft legislation that serves the needs of balance when there are so many inconsistencies in the way that that can be interpreted.

With respect to our international obligations, the Publishers Council believes very strongly that it's necessary to establish some consistent norms. That doesn't mean necessarily absolutely consistent strategies to some of our partners like the United States or the U.K., but it does recognize that if Canada is going to be competitive in that environment there must be some consistency and there must also be clarity and simplicity that our international partners can look to in dealing with Canada.

I think it's worth mentioning that Canada has already suffered somewhat in this regard in that we created one of the best Websites going, a database of Van Gogh materials which was harvested totally by a European interest and we got no assistance whatsoever from the EU in relation to supporting, having that issue addressed, because in their view we did not have legislation to protect the same thing in our country and therefore why should they protect us in theirs, and their legislation is pretty clear on that point. If you don't have balanced consistent norms, then you can't expect the protections that are available in those countries.

I think it also is necessary for Canada to implement the WIPO Treaties for our own credibility. We chose to participate in the recent WTO proceeding against China even though in fact our own laws haven't stepped up to match what we had agreed to in the WCT and WPPT Treaties.

Referring to some of the things that were in Bill C-61, I just want to touch briefly on the distance learning and the inter-library loan provisions and point out that internationally no country has provided exceptions as broad as the ones that are purported to be included, or were purported to be included in Bill C-61. The lack of limits, the fact that there's no need to record-keep, that there's no accountability in the uses considered to be part of these exceptions is a major concern to the rights holders.

I don't think we can ignore licensing options. The Copyright Board has come down with a decision very recently that very strongly asserts the fact that licensing is a very valid option. I also think we should take note of the Google Book Project and the recent agreement which is not yet endorsed by the court, but the recent agreement that in fact establishes working relationships and new commercial models for really a distribution model by Google of content through its search engine.

We very strongly believe that publicly-available materials on the Internet should not be harvested holus-bolus by the educational community, that those materials, that Copyright does not have to be formalized in this country and that if it's not apparent and the terms and conditions are apparent on the face of the content that is available on the Internet that permission is granted, then the same rules should apply. There is fair dealing available under the legislation and there are licensing models.

I also want to be sure that I point out that there is a distinction between digital rights management and technological protection measures. The Publishers Council and I think a fair number of the library associations are certainly not averse to digital rights management because it does capture the meta data that's important in relation to authorship, integrity of the work and versioning and many of the things that are absolutely essential in order to retain the value of the works that have been created.

Hon. Tony Clement: Can you give me an example of the offside in that regard then?

Catherine A. Campbell: The downside to digital rights management? I'm sorry?

Hon. Tony Clement: In terms of what would be like some… I guess that would mean that you'd need permission to use a snippet or alter it in some way…

Catherine A. Campbell: No, actually…

Hon. Tony Clement: …digital creation or…

Catherine A. Campbell: Digital rights management may involve establishing terms and conditions for use of the work, but at its highest level it's simply meta data that goes with the work that can't be removed from the work that addresses the kinds of things that were handled by the forward matter in the print environment. So authorship, date of publication, versions if that may be the case and of course in works that are created digitally, it will define how it got to where it was in terms of a database and connect it with other entities that it may or probably should belong to.

It of course can also set out terms and conditions in relation to use. Because it of course travels with the work, there has been some pressure that digital rights management is a negative thing because it will impact on uses of the work where the digital rights management is not a desirable inclusion.

I think also, again relating to the technology issues, the extent to which the principles of the Copyright Act can be adhered to and the detail in relation to the technological solutions or the particular formats or the particular… for format shifting for example actually being very specific in relation to the technology. Avoiding that would significantly lengthen the lifespan of the legislation because we're already past C-61, as you said, and it's only been a little over a year.

Hon. Tony Clement: So you're saying, just so I understand you, you're saying that those issues really are… we shouldn't focus on those issues because it's…

It's not so much you shouldn't. I'm not suggesting that the personal uses or private uses are not something the Act should address, I'm suggesting that actually stipulating what the technology is that you're addressing is something that would limit the lifespan of the work.

Catherine Campbell: The other issue is in relation to the ISPs and the development of… the use of information-location tools. Again, the nature of the business for ISPs has changed dramatically since we first started this whole exercise. There are very few ISPs now where they provide only a technical service for hosting Websites or a very neutral role, and too, if they are in fact starting to compete in terms of content distribution or content creation, then it doesn't make any sense to grant them blanket immunity or not to require them to have some level of compliance with standards or policies, and in most European countries anyway the ISPs do have to meet certain standards in order to be granted the immunity in relation to copyrighted materials appearing without permission. I think I'll just hand that off now to you. I've taken my share of the time. Thank you.

Peter Pilarski: Good afternoon, Mr. Clement. My name is Peter Pilarski. I'm the Alberta Director with the Retail Council of Canada. I'd like to start by thanking you for inviting Retail Council to participate in this round table discussion and to talk about potential changes to the Copyright legislation. This important discussion will affect all Canadians, so I applaud you for taking time to consult with constituents across the country as you decide how to best amend this legislation. We want to see Canada become a leader in the global digital community.

While Retail Council of Canada will be developing a full written submission over the coming month, I'm happy to provide you with some general comments today. I'd like to start by suggesting that there are three stakeholders when it comes to Copyright law, artists, consumers and intermediaries. As an important point of contact between artists and consumers, the ultimate goal of retailers in these consultations is to make it easier for artists to get to consumers and for consumers to get to artists. In addition to this, retailers believe they serve as the best proxy for the general consumer interest because it is our business to have a deep understanding of a consumer's wants and needs.

Our general philosophy on Copyright law is that it should reward the real creators of our culture and technology and protect the users and consumers of the resulting creations in a way that is fair, flexible and permits the most efficient, competitive and innovative position for our country. In other words, those who create deserve to be fairly paid and those who have paid for and use these creations have the right to use them in a flexible, innovative and convenient way.

Additionally, Canadian Copyright law should not put Canadian consumers at a disadvantage relative to consumers in the United States, the U.K. or other jurisdictions. We need to ensure that amendments don't encourage Canadians to shop in other jurisdictions for electronic devices and blank media. It's also important that Copyright changes would stand the test of time. Changes should be careful, cautious and consistent with technological neutrality. Our Copyright law should be balanced, clear and transparent. Canadian families should not have to consult with Copyright lawyers on the legality of everyday activities.

While Canadians need full and potent remedies against commercial Copyright infringers, we also need to ensure that ordinary Canadians engaged in common activities involving the use of Copyright material for private and non-commercial purposes, have no fear of civil or criminal prosecution. Canada should lead the world in enabling users' rights by clarifying the concept of fair dealing by users of all kinds. Fair-dealing provisions should be flexible and permit Canadian competitive access to educational and entertainment material in line with American friends and neighbors.

And finally, Canada should lead by enabling the development of new business models rather than preserving obsolete ones through the use of yesterday's Copyright tools. Thanks again for the opportunity to provide some general comments and we look forward to providing a more detailed submission in the month to come.

Hon. Tony Clement: …fair dealing?

Peter Pilarski: Basically that Canada should lead the world in enabling users' rights by clarifying the concept of fair dealing.

Hon. Tony Clement: To Kay, you're next on the list.

Kay Shea: Hi. My name is Kay Shea (ph) and I'm Vice President External of the University of Calgary Students Union and I'd just like to say that we're really excited to be here and we feel that Copyright reforms really affect students and their relationship with academic material. So we think that this is an important time to have our voice heard and students and young Canadians are very encouraged by the way the government has been using social media in order to create more transparency. And yeah, we're very encouraged by that and I'm following you guys on Twitter.

So I would like to say that students strongly support the protection of intellectual property through effective Copyright legislation, and this effective Copyright legislation must maintain a balance between necessary protections provided to content producers as well as a guarantee for reasonable access for the public to access the content. The ability of Canadians to secure a full and competitive participation in the global economy depends on a high-quality post-secondary education.

Whether through a robust fair-dealing provision or an explicit educational exemption, post-secondary institutions and students must be legally sanctioned to use copyrighted materials for educational purposes. The ability to fairly use and distribute copyrighted materials for educational purposes, including research and teaching, are vital components of a high-quality post-secondary education system. The University of Calgary Students Union wants Canada to maintain its leadership in the digital economy. A well-balanced Canadian solution to Copyright is the best way to ensure that we maintain this leadership.

We came to this table with three specific points. The first is regarding when amending the Copyright law to adapt to how course materials are being disseminated digitally. There must not be unreasonable limitations imposed on them. From evaluating the previous discussions regarding Bill C-61, we find it problematic that there was the suggestion that lesson materials would have to be destroyed at some point after the completion of a course. This doesn't take into consideration that previous lesson materials are used as a study tool and as a learning tool for future courses. Especially for professional degrees, the relevance of these previous course materials is paramount.

We also question burdening our institutions and professors with the obligation to destroy the lesson plan with Copyright materials that they have created even if the same lesson plan is being used repeatedly and not disseminated for any other reason other than academic purposes. We would also not like to see limitations that would oblige our institution to dedicate already strained resources to the collection, destruction and policing of copyrighted works.

Our second point was regarding DRM and any similar anti-circumvention mechanisms that could potentially be put into future Copyright legislation. They create broad protection for anti-circumvention measures and exceed the objective of limiting infringing activities at the expense of users. In short, they limit legitimate activities for non-infringing uses in research and study. At the University of Calgary we have over 1,200 students who access our disability and resource center and it is imperative for them that they are able to use adaptive technologies in order to convert any copyrighted materials that they use in their courses into more accessible formats.

I think we can all agree that it is important to be inclusive to the learning needs of students with disabilities and I think we can further extend that inclusivity to students who simply have different learning styles. In future legislation, students would like to see the ability for any student to convert copyrighted material used in courses for educational purposes.

Finally, our third point is we are encouraged by the discussion of allowing libraries to disseminate inter-library transfer materials digitally. In this digital age I suppose you could call it, more learners and researchers retain a digital collection of data and we process that data through digital means such as our laptops or Blackberries. In future legislation we ask that libraries are permitted to convey materials to students digitally rather than solely as a paper copy. This would present students with opportunity for a timely effective delivery system that would only benefit how students learn and, in turn, benefit the way our students can be creative and innovative.

In short, we acknowledge and support the necessity of amending Copyright legislation to promote Canada's leadership as a digital economy. Future Copyright law must balance the rights of both users and creators and reject a restrictive and pre-emptive digital rights management. Future Copyright law must promote greater digitization of learning environments in the post-secondary institutions. Thank you.

Hon. Tony Clement: Yeah, Rob from the Library Association.

Rob Tiessen: I'm Rob Tiessen representing the Canadian Library Association. I should also add that my day job is a librarian at the University of Calgary. The Canadian Library Association welcomes the opportunity to participate in the Copyright consultation process. I'm going to bring up several Copyright concerns that concern libraries. First of all, fair dealing. The most important judgment that the Supreme Court has made in recent years concerning Copyright was the CCH Judgment. The Supreme Court argued that fair dealing was more than an exception, it was a user's right, and that a reasonable balance needs to be struck between the rights of users and creators.

Legislation should incorporate and expand on the most important elements of the CCH Judgment and especially the parts relating to fair dealing. Libraries would especially like to see the six factors from the Supreme Court Judgment incorporated into the Copyright Act.

Another issue relating to fair dealing regards statutory damages. Those who act with a good-faith believe that their actions with respect to work are within fair dealing or are protected by another user right should not be subject to statutory damages at all, similar to the provisions in Section 504 of U.S. Copyright law. We feel that's one of the advantages that the Americans have in using fair use over Canadians using fair dealing. We'd like to see that expanded to Canada.

This protection should apply to individual members of the public as well as libraries and educational institutions and their employees. Just to mention that things like the Gower Review from the U.K. and the computer and communication industry studies in the U.S. in 2006 and 2007 have long demonstrated that robust fair dealing, or in the U.S. robust fair use, strongly contributes to the economy and that creative industries need a robust Fair Dealing Act.

Our next concern regards digital locks. A major trend in libraries is towards more and more digital content. For example, the average Canadian university library now spends 49% of its collections budget on digital content. Ten or 12 years ago it would have been less than 10%, and while I don't have statistics for other kinds of libraries, in every type of library we're seeing more and more digital, less and less print. Digital locks have a negative effect on fair dealing from digital collections. CLA recommends the government in implementing the WIPO Treaties permit the circumvention of digital locks for non-infringing purposes. There are legislative precedents such as Bill C-60 from 2005 and current legislation in Denmark that make it legal to circumvent digital locks. For non-infringing purposes, that would still allow Canada to implement both the WIPO Copyright Treaty and the WIPO Performances and Photographs Treaty and we'd then become the fourth G8 member to implement the WIPO Treaty, not like some people like to suggest the last G8 country, because right now five G8 countries still haven't implemented WIPO.

Another concern of ours regards the perceptually disabled. Right now even without the law making it illegal to circumvent digital locks, it is difficult for the perceptually disabled to use e-books. That's one concern that we have. Another issue is the free flow of alternate format materials between the U.S. and Canada. Before 2004, it was quite common for the CNIB and libraries and other organizations that had converted copyrighted material into alternate formats to send that to the U.S. for use by the perceptually disabled there and likewise, for libraries to bring up alternate format materials for use by the Canadians who are perceptually disabled here. For example, before 2004, many Canadian universities, including the University of Calgary, would purchase perceptually-disabled students memberships in the Readings for the Blind and Dyslexic.

That's an American service organization that provides university texts in alternate formats, that it was often far easier to go through RFBD than through the CNIB. But since 2004, that's been cut off. Likewise, many public libraries when they were trying to obtain material that was unavailable from the CNIB in an alternate format used to go to the U.S. government's National Library Service for the Blind and Physically Handicapped and bring in alternate format material that way.

Since the Shafee (ph) amendment, the U.S. no longer allows, to their Copyright law, the U.S. no longer allows the export of alternate format materials to other countries including Canada, and since 2004 the Canadian Government has now told organizations like the CNIB and libraries that whatever our practices were before 2004, you should interpret our Copyright law, which hasn't changed, to not allow the export or shipping over borders of alternate format materials.

And finally, there are a lot of things that we like about Section 32 of the Copyright Act which allows the conversion of materials into alternate formats for the perceptually disabled without infringing Copyright, but we'd like that expanded to include all formats. Right now there are certain restrictions in formats and we think that when something is converted to an alternate format it should be to the format most suited by the person who needs it rather than being limited by provisions in Section 32 of the Copyright Act.

Another concern that we have is Crown Copyright. We feel that it is time for the government to relinquish Crown Copyright. The government should introduce legislation that clearly states that Copyright does not apply to Crown publications and that all such publications should be in the public domain. We should follow other jurisdictions in doing that.

Hon. Tony Clement: So let's say you have a scientist working for the National Research Council and the scientist publishes a paper with some innovation or discovery or something. So you're saying none of that would be covered, that would…

Rob Tiessen: Well, it's interesting right now. I was asked to consult with someone else on a scholarly journal that was having some difficulties, a Canadian scholarly journal, and they're having some issues around a third parting (ph) of Copyright claims. And one of their issues has been that whenever they published a journal article from a Canadian research scientist, from someone working for a government agency, they refused to sign Copyright. And they didn't know how to get Copyright from the government, so ironically this journal has been publishing articles without Copyright permission.

The scientists submit them because they want the recognition that they get in the research community from publishing journals, but because neither the scientist nor the publisher seems to know how to get Copyright permission for these things, the Copyright for these things is I guess up in the air and it's now causing… previous practice is now causing this journal significant pain. And there have been a number of other issues in, you know, all kinds of government material. Every government department seems to have a different procedure on whether or not to allow permission of government material. I don't think… no offense to Public Works, but I don't think they've made it terribly clear on how to gain access to Crown Copyright material.

Hon. Tony Clement: And that's fair. Yeah, I just wanted to give you an extreme case, but this came up yesterday as well and so I'm definitely going to look into that because I didn't much about it before it was raised yesterday. So I appreciate that.

Rob Tiessen: Please do. And then our final concern that I had in my prepared notes was regarding Internet service provider liability. For Internet service provider liability, the Canadian Library Association supports the notice and notice regime that the courts have established in Canada rather than adopting a U.S.-style notice and takedown regime. For one thing, we'd like to point out that in addition to commercial ISPs there are many non-profit organizations that fit as ISPs under current legislation including public libraries, school boards, universities and colleges. So any changes that are made to how ISPs are governed affects far more than the commercial Internet service providers.

Another problem of course with notice and takedown is that in an environment where it is not against the law to claim false Copyright, that can lead to censorship by the courts, and there are numerous examples in the U.S. since the DMCA in 1999 and in Australia since they adopted those rules in 2006 with organizations claiming false Copyright to shut down Websites that they didn't like.

Hon. Tony Clement: Yeah.

Rob Tiessen: Could I add one more thing that I didn't really prepare?

Hon. Tony Clement: Sure.

Rob Tiessen: The Canadian Library Association wasn't planning to ask for any changes to Section 30.2 of the Copyright Act. 30.2 allows libraries, archives and museums to act on behalf of their users in fair dealing and that's used for a number of things including inter-library loan. We feel that the CCH Judgment has resolved that issue and we're not looking for any changes to that Section of the Copyright Act at this time.

Hon. Tony Clement: Okay. Were there any changes proposed in C-61 on that, on that particular Section?

Rob Tiessen: Well, the government changed it and I know I had a number of communications with people at various times in 2007 and in the consultations in 2001 and 2002 we had asked for changes to Section 30.2. That was of course all before CCH. And there seemed to be a misunderstanding that the library community is still interested in changes and we feel the Supreme Court for the time being is taking care of our concerns.

Hon. Tony Clement: I appreciate that. Thank you very much, Rob. Okay, we will move then to Cynthia Rathwell. Thank you very much. Cynthia.

Cynthia Rathwell: Thank you very much. It's Cynthia Rathwell. I'm the Vice President of Regulatory Affairs at Shaw Communications, and I would like to thank you for the opportunity to make remarks here today. We'll be keeping those remarks fairly high level at this point but we'll also be making a submission prior to September 13th, as you proposed.

Shaw, just to provide a bit of background, is a diversified company that provides various services to Canadians that are extremely important parts of the digital economy. We provide Internet service, cable television distribution service, direct-to-home satellite television distribution service to over three million Canadian households as well as digital phone service. And with respect to our broadcasting distribution services and the provision of Internet services, all of those are impacted by amendments to Copyright law and therefore we do have an interest in how those roll out for both our company and also for our customers.

Canada's Copyright Act in our view should promote and encourage strong innovation and development of Canada's digital economy. Canadians have embraced the power of the Internet to access, create and share content and ideas, and we are very concerned less reforms are not made to the Act or reforms are made to the Act which would limit consumers' ability to use the Internet and affect our ability or incentive to make ongoing investments in our networks for their benefits.

Specifically, I think of major concern to us is the extension of the current ISP exemption in the Act to apply not only to the right of communication, but to other rights that are in the Act including the reproduction right and possibly any technological protection measures that might be proposed. In our role as an ISP, we are providers of access to the Internet and facilitators of consumer use thereof. We are merely intermediaries and the purpose of the exemption would be not in connection with posting of content on the Web by Shaw, because Shaw does have a Website for example, but it would be in connection with the intermediary functions of our network which involve transmitting content at the request of users, hosting third-party content, caching in order to facilitate network performance and the provision of Web-search functions. So the continuation and the expansion of the ISP exemption is very important to us.

Secondly, we're concerned with the existence in Canada of the notice and notice regime if we're headed in that direction as opposed, as Rob said, to a notice and takedown regime with respect to alleged Copyright infringement on the Internet. Also, we would like to be clear that we would not be supportive of any graduated response mechanism being put in place. This has now been rejected by many countries and we feel it would be… it's a disproportionate response to any potential infringement on the Internet to deny a Canadian household access to Internet services and is draconian and we shouldn't be heading in that direction if we're trying to promote online use and the expansion of broadband facilities in Canada.

Hon. Tony Clement: Just so I understand your position.

Cynthia Rathwell: Sure.

Hon. Tony Clement: So what's your position on notice and takedown then?

Cynthia Rathwell: We would oppose notice and takedown.

Hon. Tony Clement: You would oppose that?

Cynthia Rathwell: And beyond that the notion of sort of a…

Hon. Tony Clement: A graduated response.

Cynthia Rathwell: A graduated response would also not be…

Hon. Tony Clement: So what are you in favor of then?

Cynthia Rathwell: Voluntary notice and notice.

Hon. Tony Clement: Notice and notice.

Cynthia Rathwell: And to the extent that notice and notice is the mechanism we're working with, we wish to highlight the fact that the amount of notices that we have been receiving from Copyright owners over the last five years has grown exponentially from a couple of thousand notices per month in the first year when we started recording these to now tens of thousands of notices per month. So it does constitute quite a burden to try to administer these. We do not have an automated system for doing that at Shaw and, you know, either the development of the automated system in itself would require significant resource allocation, and if it's not automated it's a lot of heads. We figure it represents about 40 people who would have to do this, and so therefore we would ask that there be a cost-recovery mechanism put in place both to assist us with delivering the notes but also to be a reasonable limit on frivolous requests.

The next area with which we are concerned significantly is fair dealing as it stands versus what we would view as a need for a broader fair-use exemption on the U.S. model. We believe that allowing consumers to make personal uses of Copyright materials that they have paid for but to have flexibility within that context is reasonable and is in the best interest of the public in developing the broadband and the digital economy.

And finally, although this was not on the table in Bill C-61, we wish to note that we would oppose an expansion of the current retransmission regime under the Copyright Act which is Section 31. Currently, as you know, it applies to the retransmission of programming and distant signals. We're not aware that there are any plans to expand this but because of the inter-relationship of retransmission rights and Copyright and the broadcasting regulatory framework for distribution, we feel that this is an area that has to be dealt with very, very carefully.

To the extent that we afford retransmission rights to broadcasters, or a signal right is another way of putting it, we are very concerned that that will lead to large outflows of money from the Canadian broadcasting system to U.S. rights holders if they're claiming reciprocal rights under treaties or even the NAFTA cultural exemption would not, or the FTA cultural exemption would not really be sufficient we believe to prevent them from making claims that would damage our economy and damage the balance within the existing broadcasting system. So we just want to put a marker in on that, although… And also, we have been taking the position for several years now at WIPO negotiations on the Broadcast Rights Treaty that Canada should be able to make an exception under that treaty to provide for the maintenance of its current retransmission regime, and we support that position and the maintenance of that position.

Hon. Tony Clement: Good. Thank you very much. That's very helpful to know. Thanks, Cynthia. Gary, you're next.

Gary Maavara: Thank you, Minister, for this opportunity to speak today. My name is Gary Maavara and I represent Corus Entertainment and also I'm here representing the Canadian Association of Broadcasters. What I'd like to do this afternoon is to talk a little bit about who we are, talk a little bit about what we think the approach should be that you take to this legislation and also to the administration of the legislation, and then I'll get at some specific legislative proposals.

But first, because we're in a classroom, a warm classroom I might add in the Summer, I'd like to start with show and tell, and it's show and tell to illustrate a point and I'll pass around this booklet to everyone. I'll hand you this booklet, Minister.

Hon. Tony Clement: Thank you.

Gary Maavara: And it's tabbed at a page which is entitled "Overall Best License Program of the Year" and as you go down the list, these are the nominees for this award and this is an awards event that was put on by the International Licensing Industry Merchandisers Association which is a world association of people who do just that, license properties around the world. And we had one of the Corus products which is called Bakugan Battle Brawlers which is a multiplatform game, television program and toy. I'm happy to report that it's one of the top-selling toys in the world. Wal-Mart actually issued a release about the toy stating how well it was doing for them.

But the reason I show you this is not only to brag a little bit about that we actually won this prize, but to show you who we were up against to give you a sense of the scale. We were up against the Beijing Olympics. We were up against the Dark Knight Warner Brothers property, we were up against major league baseball, among others. In the previous page we were also nominated for Best Film Television Entertainment Brand Program of the Year, and our partners, Spinmaster, on the page previous was not nominated for Best Film Television Entertainment Brand Licensee of the Year, and Spinmaster indeed won that, the very successful toy company that we work quite a bit with.

And the reason I raise this is that as you saw at Canada3.0, and by the way we were most appreciative that you could attend that, and I think you'd recognize that the people who were in that room for that event all believe that Canadian companies can compete on a world level. We can win in that context. Companies like Corus, other broadcasters, companies like RIM and Open Text. We don't only intend to compete, but we intend to lead and we very much appreciated your support and Minister Goodyear's support of that event, and I should also add that we're planning 3.1 for next May, bigger and better than this year.

So who are the Canadian Association of Broadcasters? One of the perceptions of us is that we are users of Copyright, which is true, but we are also huge creators of Copyright works and huge creators of the value in Copyright works not only in our own works but also in the works of the properties that we acquire and use. And the reason that perception is important is because a lot of the discussion that we have, and you're going to be hearing from a lot of groups, you know, you'll have the directors in front of you, you'll have the actors guilds in front of you, you'll have the writers guilds in front of you, the producers, etc., etc., etc.

All of those are dependent on the value that we create at the broadcasting level in those works. You're going to have the music labels in front of you, the collective rights societies for music and other things in front of you. If radio stations are not successful in creating the value of those works either to develop the specific tariffs that we pay or to drive the interest of Canadians and others in the works that they create, there's no system. So our success is really very much a foundation to their success, and that's our first point, is that we are enormous creators of value and we hope that the legislation and the administration of that legislation recognizes that.

Who are we? Broadcasters traditionally have been thought of only as users of works, but in the digital world in fact, for example here in Calgary our morning news talk host, Dave Rutherford, we used to think of what he did as kind of an ephemeral thing because it went out through the microphone and it was gone. But now in the world of preservation through Podcasts and other things, that's content and it's content that Canadians really use a lot and enjoy. Broadcasters do a lot of that every day.

I mentioned the creation of the value in the music. In a world where you can acquire music, I mean it's a cliche now to say that you can get music anywhere, through an iPod or Internet or whatever. The interest in the music is driven by the radio broadcasters when they talk about the music. And even in the new music area even the kids who are streaming and blogging and doing all this stuff, they're still listening to FOX, our radio station in Vancouver, or to the Edge in Toronto. In fact, I think you heard one of our "It's a Great Time to Buy a Car" ads on the Edge one morning. We're driving that interest and again we're a fundamental element of the system.

On the television side, our news operations, the dramas that we create, the reality programs we create, again a huge part of the value creation in Canada. And then for what it's worth, Corus Entertainment is probably one of the largest producers in the world of children's animated programming. In our own right, we are one of the largest producers of programming. And on the publishing side we're the largest producers of children's books through Kids Camp Press.

So we kind of come at this Copyright subject from a lot of different directions, and obviously we have a huge vested interest in it. But our fundamental point is that if we're not successful, a lot of the other groups that are before you won't be either because they simply build upon the foundation that we create.

As far as specific recommendations, one of the things that we'd be looking for on the radio side is the exemption for ephemeral use. As you know, in the existing Act there is an exemption for ephemeral use, but there's an exemption to an exemption which popped in at the last minute in the last Bill that was passed, and it resulted in an exemption if there's a collective filing for a tariff. And broadcasters were faced with a circumstance where we created a digital system which cut the costs for the music labels to ship their music to us, they no longer had to send us a disc and all the attendant costs of that. And then we ended up having in fact to pay because it was deemed to be… when we took that digital stream and put it into our radio computer, the music entities filed a tariff, relied upon the exemption to the exemption and in fact as an industry we're probably paying close to $10 million a year for that now.

So in a sense we got penalized for moving into the digital age and we're simply doing something that we have the right to do, which is to use the music, and for that we pay a significant amount of tariff fees. So we just look at that as kind of a piling-on tariff and in fact it stands in the way of innovation and it really underscores the point I made a couple of times about if we can't be successful as radio broadcasters, the music industry is going to have a really tough time because the environment that we're living in is global and we need to have local radio to get Canadian music on air.

Hon. Tony Clement: Gary, sorry to interrupt, but do you have stats on listening habits that back that statement?

Gary Maavara: Oh, absolutely, sure.

Hon. Tony Clement: So people are still, young people, music listeners, music afficionados, they're still listening to radio. That's how they're deriving new musical content still?

Gary Maavara: Well again, I'll give you a great illustration. We made a deal with the iPhone people to stream our radio stations and we thought we would get maybe 30,000 people to sign up. That was our projection. We've passed 130,000 in six months. We have a tremendous number of people on the new devices who are accessing our content. We also have, we're really proud to have a gentleman, Alan Cross, who's been on radio in Canada for quite some time. We've developed a history of rock and roll Podcasts which has been hugely successful, and it's young people, old people downloading his stuff. So we can certainly provide you with a lot of that information.

Hon. Tony Clement: Thank you.

Gary Maavara: In that regard, we're going to have a much better understanding of the audience flow for radio with…

Hon. Tony Clement: I didn't know whether that was the exception or whether that was still statistically relevant. That's why I was asking.

Gary Maavara: Oh, you're very relevant. The personal people meters are coming in in radio and we've been really delighted. It's been in operation now in Quebec and it's going to be moving into other major markets in Canada including here in Calgary, and we actually got test results in Calgary but I can't tell you what they are but I can tell you that we're very pleased. And one of the things that it's shown us over the diary measurement is a significant increase in the reach of radio where we're seeing… and it's kind of intuitive that people sort of listen to the radio all over the place, and the diaries weren't necessarily reflecting that.

Hon. Tony Clement: No, they weren't. Yeah.

Gary Maavara: So back to the specifics. We're advocating that there be an exemption for the ephemeral use. We think it's in fact in the best interests of the music industry to do so. The second is, and this goes to the administration of the Act more necessarily than the actual legislation, is we have to find a way to streamline the administration of Copyright.

The whole purpose of collectivization was to be efficient and to establish certainty and, as I said to the Chairman of the Copyright Board the other day, I was at the last day of the Radio, the recent Radio Hearings and there were 44 lawyers in the room, and I'm a lawyer myself but I made the observation that having 44 lawyers in a room is not necessarily the most efficient way of perfecting a regime. It was an enormously expensive process with a really uncertain outcome, and we have to find a way collectively to get through that because we're simply not going to be able to compete on a global basis if we have these huge administrative… it's not only the cost, it's how slow it is at these tariff hearings. You know, they're talking about a tariff that's two years old.

The third major thing, and I'll stop after one more after this, is the liability for sound recordings and I won't expand on that, but we simply think, as is the case in the U.S. with the battle that's going on down there, is that we create an enormous amount of value in music and we pay a fair amount for that music, and establishing new rights is simply going to do two things. One is it's going to tax our success, but secondly it's also going to complexify the situation that we're in, you know, as I said, the 42 lawyers in the room.

The final thing, and this isn't so much in the area of Copyright per se, and it's certainly something that we're going to be exploring big time at Canada3.1, is the matter of digital rights management. And this is not in the context of legislation or the technical sense of that word. Canada we feel has a big opportunity to lead the world in the development of taxonomy for Copyright rights management. Open Text, for example, they have the finest rights management software in the world, but if we don't develop a language that's embraced by the world to fill in those fields and those field-based systems, the software isn't really going to work. And the great opportunity that Canada has, because we're respected around the world as creators but also as honest brokers, is I think that we have an opportunity to create kind of a Wikipedia approach to developing the taxonomy for how to describe rights. And we'll expand upon that in our submission. But this is an area where, Minister, we can really lead the world with the right approach.

Hon. Tony Clement: Last but not least we have René from Digital Alberta.

René Smid: Hi. René Smid, Executive Director for Digital Alberta. I'd like to thank Minister Clement and Industry Canada for extending an invitation to Digital Alberta to participate in this forum with an opportunity to voice the position of our membership and just to give you a little background on Digital Alberta. It's a not-for-profit association that represents the digital media industry for Alberta. Through professional development workshops, advocacy work and business development, Digital Alberta is building the digital media industry provincially and promoting it abroad.

On behalf of the Digital Alberta Board of volunteers that represent the industry, I'm pleased to share our Association's thoughts on this issue. Keeping it as simplistic as possible, there are essentially two camps. One, give everything way and share it for free. Two, hold on to Copyright with an iron fist and make the laws tougher.

In Digital Alberta's world, the young folks tend to side with number one, give everything away and share for free, but that is flawed because it means their hard work retains no value. We have yet to create a sustainable business model with open-source content creation where everything is given away for free. Our position advocates, one, for fair dealing of copyrighted material, one that increases legal market behavior and limits the black market trade of material. To do this, we need to broaden use for consumers in making it easier to access and use material and not put limitations on technology. We should be able to buy a movie or song and use it on whatever platform or medium we want. By limiting use based on the publisher, this only narrows the marketplace and increases the prospect of illegally using the material. And it also does nothing for the artist.

Digital Alberta's position is representing the new wave of digital content creators. Digital Alberta's mandate is to protect them, not the publishers, broadcasters, platforms, etc. To do this we need to ensure the consumer has adequate access to a diverse amount of Canadian-born content on a diverse set of platforms to ensure a healthy and strong marketplace for artists. Our content creators want to provide their customers with easy access to their materials and get paid for it. So in the end, it's about taking down the barriers between the artists and the consumer. This increases the marketplace and allows the artistic and cultural industry to thrive. Thank you.

Hon. Tony Clement: Just so I understand, you know, you're trying to obviously, you're trying to encourage the direct interplay between the creator and the user, the fewer intermediaries, the better from your perspective.

René Smid: M'hm.

Hon. Tony Clement: So I'm not trying to put words in your mouth, I'm just trying to understand exactly how this works. So in terms… you're not opposed to artists being remunerated for their content.

René Smid: No.

Hon. Tony Clement: But you want to create a platform where that can happen directly. Is that…?

René Smid: Exactly, so that the consumer has lots of different opportunities, lots of platforms that they can use. If they go and buy a CD at Wal-Mart and yet they own that CD, but they can't put it on their iPhone legally.

Hon. Tony Clement: Right, right. So, yeah, I get that part, I get that very, very quickly. But it's hard to compete with free.

René Smid: M'hm.

Hon. Tony Clement: Right?

René Smid: I'm not sure I have the solution for that.

Hon. Tony Clement: Yes, I think everybody's all grappling with that across all various media. Okay. So I just wanted to know whether you had… you did say that free doesn't work ultimately.

René Smid: M'hm.

Hon. Tony Clement: It becomes self-defeating, although there is more and more research on the economics of free which I won't get into right now, but there are people starting to think about this issue which is challenging in the 21st century. But getting back to the point, you do see the need to recompense creativity and intellectual property?

René Smid: Yes, fair dealing and fair use. Yes.

Hon. Tony Clement: Fair dealing and fair use. Okay, good. Good. Well, we've gone around the table. Does anybody have any… based on what you've heard, are there any additional comments you'd like to make as a result of the discussion? Catherine?

Catherine Campbell: …the balance between or the difference between fair dealing and fair use.

Hon. Tony Clement: Yeah, yeah.

Catherine Campbell: Because I think that the grass always looks greener… the grass always looks greener on the other side of the fence, and we look to fair use as being a broader right and a more predictable right, and I don't think that in the U.S. that view is held as strongly as we seem to hold it here largely because even though there are factors that are applied to fair use, those factors are… the breadth of those factors are determined by the courts and often years after the alleged infringement has taken place. So predictability is not a strength. You also I think have to look at fair use in the context of all of the rest of American IP legislation, and it sits with the DMCA and it sits with Teach Act. Both pieces of legislation are much more rigid and narrow than anything Canada is proposing. So it's too simplistic to say that fair dealing and fair use could easily be traded off and a fair-use regime could be adopted in Canada.

Hon. Tony Clement: Okay. I appreciate that. Any other comments? Gary?

Gary Maavara: On the subjects like fair dealing and fair use and the concept of free is that we obviously have to start from the perspective of this is Canada, and one of the things that we are constantly reminding governments of… for example, Chris Anderson's book "The Long Tail". The Long Tail is terrific if you have the wherewithal to build the head of the animal, and the challenge that we have in Canada with this small market and also in the context of having to compete with the rest of the world is it's really, really tough to get that head created. So we need to continue to have supports from various governments for the investments that are needed for that.

The second thing is we need to recognize that we need scale to create Copyright works in Canada. That booklet I gave you, all of the revenues of the Canadian broadcasting industry are rounding errors for some of those people you're competing against. And I guess the third point I would make on questions like fair dealing is that we really need to get the law right first before we go to the compensation issues because if you don't get the first part right, the second part in a sense doesn't matter. And, you know, Michael Geist (ph) is I think a good friend and colleague, but I don't always agree with him because — and with all due respect to Kay Shea who could very well be the Minister in a little while, I was very impressed by your presentation — you know, the use of works… first of all, we have to get a clear regime for how works are going to be used and then we can get to the question of how much do we have to pay and who pays and what are the exemptions to that. But if we don't get the first part right, the second part is not going to fall into place.

Hon. Tony Clement: Right, but is it possible to have those kinds of discussions, because when we talk about, we all talk about balance and it's been raised already today and indeed yesterday, it's in the eye of the beholder what the appropriate balance is. Of course, that's the nub of the issue. But it's really difficult to come to any conclusions on that if people don't know what's in it for them at the end of the day, how the remuneration will work, how they get paid, how they get compensated for their effort and their time.

Gary Maavara: Fair enough. But the problem is that if we focus too much on the financial consequences and we don't get the clarity correct in the first place, then you're always going to deal with that problem, and it goes a little bit to the question of administration. I think as a broad policy matter, the Government of Canada has got to understand that for example we have to rethink the Copyright Board first of all in the context of its role and its budget. I mean I don't always agree with their decisions, but I think they're quite heroic in the amount of work that they can consume and develop decisions around, and we need to… it's sort of like the taxonomy issue, we really need to put our minds to the administration of Copyright once we've got the legislation done. It's not kind of the game is done when we've got the legislation done.

Hon. Tony Clement: No.

Gary Maavara: We then have to move to the next step and that's where we could start to get to issues such as, you know, if we have a clear fair-dealing rule and we need to help the library associations and the students in Canada, how do we establish and administer a regime that works for them?

Hon. Tony Clement: Good. I guess, Lee?

Lee Webster: I just have a brief comment. You know, one of the things I think you're going to be really struggling with if it's not self-evident is that, you know, our old Copyright Act was actually pretty good and it lasted a long time because it was by and large technologically neutral. But, you know, just sitting here today listening to what everybody is saying and, you know, what I hear, you know, in my practice and through the Chamber, you know, it's difficult to craft technologically-neutral legislation when everybody has, you know, a unique voice based on their own industry. So I think you've got to start at the level of principles and then you have to listen to each voice and try to strike this balance that we're all talking about. You know, I hear a lot about fair use but I can tell you fair use is fine but everybody's idea of what's fair is their own, you know?

Hon. Tony Clement: For sure.

Lee Webster: I hear that all the time. I have clients that come in and say I'm taping this but that's just fair, it's fair use to copy the whole thing, and I'm like, well, get a little bit of a grip here. You know, you might think it's fair but there are others that don't. So you know, I don't envy your position in having to wade into this, but what I'd like to see is I'd like to see whatever we come up with, keep the benefits of the principles being technologically neutral and then somehow dive into the specific industries and try to figure out how this ephemeral balance we're talking about is going to be achieved.

Hon. Tony Clement: Yeah, technologically neutral came up yesterday too as certainly something that participants wanted to see, and I guess it was based on the idea that, you know, if we try to… well, anything that's skewed based on our current understanding of technology is going to be so out of date so quickly that it becomes useless again. And the other thing too is it also diminishes the credibility of the legislation. If over a short period of time it becomes not relevant, then people are just going to ignore the other parts of the legislation that are still relevant. So we have that… I mean I guess we're all saying the same thing in different ways, but the challenge that we face is nothing is static right now, so we're trying to produce groundbreaking, relevant, workable, fair legislation at a time when we're still in the disruptive stage, we're not through it yet, we're kind of… we could be in the beginning of it for all I know, or two-thirds of the way through or 50%, who knows, right? So this is the challenge, to make the legislation work in that environment.

Lee Webster: Well, I think the challenge is accentuated by the fact that, you know, in the olden days there were only so many ways you could copy something. You know, bring out a piece of paper and write it down. You just could not easily copy a record album. But today with digitization you can copy, cut and paste and fiddle and do all sorts of stuff. So what's proper and what's not, you know? Like I listen to perceptual… how can you argue that somebody shouldn't be able to look at book and change it so a blind person could read it better? You know, you can't argue against that.

Hon. Tony Clement: Yeah, yeah, and the amount of it or the scope of it is a lot bigger, although I did on the same point. A similar point was raised yesterday and, you know, I'm sure Homer had the same problem with his works being recopied and changed. So actually I don't think he actually ever wrote anything down, that was his problem. So it was an oral history that was written down many different ways. So you know, actually this is human nature being what it is, this is an age-old problem. But you're right, I mean the technology is just so vast now that it can happen instantaneously.

Lee Webster: Yeah, and it's difficult to see the future. I mean I understand that the records, the makers of sheet music back in 1920s wanted to stop music being broadcast on the radio because it would interfere with sheet music distribution, and well, you know, that was not a wise move because the radio promoted the music business so much. So, you know, it's hard to have vision when you don't really know how technology is going to unfold in the future.

Hon. Tony Clement: Yeah, but human nature is the one immutable thing about all this. You know, I remember reading an article about in the twenties and thirties the representatives of music publishing and recording would scour the United States and then the world looking for folk songs because they were kind of running out of material, so they would just find a folk song somewhere, "She'll be Coming 'Round the Mountain", and then put, you know, Al Smith's name on it from that particular recording company and that became their song. It's the same thing, it's just a different era, right?

Lee Webster: That's right.

Hon. Tony Clement: So that's what we're dealing with.

Lee Webster: You can't really gut the right either, as I said in my introductory remarks, because Copyright does provide a benefit, as do other intellectual property rights, and I don't think it's a good thing to… it's certainly not a good thing to exist in a world where there's nothing but counterfeit goods floating around or where there's no certainty and reward for creativity or, if you want to get into the patent world, inventions and the like. You know, that just doesn't make good economic sense or good… it's not good sense for the consumer either. So you do need rules and you need fair rules for compensation so the public knows how to act. The struggle is with the digital economy, you know, it's just very difficult to, you know, figure out what to do to say it colloquially.

Hon. Tony Clement: We're all struggling with the same thing. I don't know, Rob, do you want to add to this?

Rob Tiessen: I just wanted to state that I'm very much impressed with what the Supreme Court has done with fair dealing in terms of the six factors. But I think what was and wasn't fair dealing before 2004 was much more complicated than now, and that we're really better off. I mean the Supreme Court has really done quite a lot of the work with their six factors and we're probably better off using that…

Hon. Tony Clement: Codifying it.

Rob Tiessen: …and codifying that than trying to start from scratch.

Hon. Tony Clement: I appreciate that. One final word. Catherine.

Catherine Campbell: If I could. Just a reminder I guess that the Copyright legislation is intended to provide a basket of rights, but those rights don't have to be adhered to. So musicians who want to give their music away for free can give their music away for free. People who want to put terms and conditions on that are different than the blanket rights in the Act can do so. And I think we should be very careful not to be so generous in the Act because of the liberal end of the interest that we forget about the breadth of content that is covered, you know, that it's scientific data, that it's court cases, that it's collections of news materials and newspapers and it's not all about CDs and DVDs and broadcast of the entertainment, popular entertainment industry.

Hon. Tony Clement: I appreciate that sobering comment. I appreciate that. Well, folks, I'm going to sort of call it. We're pretty well on time here, so I want to thank you and I wish someone found a room with windows but that's fine. I actually do want to thank our hosts though for hosting us here. That was very generous of them to do so. And thank you for participating in this. This will be posted I guess and anyway, yesterday I think we had several dozen people following it on Twitter, so I don't know how we did today but I hope we passed the audition, and certainly I encourage you to follow the debate as it continues to roll across the country and we look forward to your formal submissions. Thank you.

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