IN THE HOUSE ~ Debate ~ Bill C-32, An Act to amend the Copyright Act

40th Parliament, 3rd Session
Context : Questions and Comments

Mr. Peter Julian (Burnaby—New Westminster, NDP): Mr. Speaker, on this cold day in the House I just wanted to come back to the hon. member and follow up on some of his comments.

The most particularly egregious aspect of this legislation is the 30 day retroactive book burn where students and teachers have to basically destroy content that they have received as part of their educational material, which is, for anyone who understands the education sector, whether we are talking about high school, college or university, incredibly irresponsible. What it means is that students have to try to retain in their minds material that they have accessed as part of their educational requirement.

I want to get a comment from the member on how he feels about this particular measure that forces teachers and students to destroy their educational material. In other words, part of their education.

Mr. Peter Julian (Burnaby—New Westminster, NDP): Mr. Speaker, I am pleased to rise to speak to Bill C-32, An Act to amend the Copyright Act.
I would like to start just by praising the member for Timmins—James Bay, because there is absolutely no doubt, as the first digital affairs critic actually in the history of Parliament, named our leader to comment and to push the government on digital affairs. Because of his background as an artist who has depended on copyright, the reason why we are even seeing a copyright bill coming before the House is because of his endeavours and his endless effort to try to get the government to understand, after four years of sitting on its derriere, that there had to be action taken on copyright. It is because of the member for Timmins—James Bay that the government has moved at all.

There are positive provisions of the bill that I will come back to in a moment, but I have to say, as with virtually everything else the government has done, there is an element of ineptness in how the government approaches general issues, whether we are talking about its appallingly bad financial management, its treatment of veterans, the corruption that we are seeing inside the government, everything that the government promised four years ago, we have seen that it has managed to either botch or deliberately mishandle.
In this case, we are seeing with the bill provisions that we can only liken to digital torches and pitchforks that are thrown into the bill which diminish some of the good elements that the member for Timmins—James Bay was able to promote and put into effect.

What we have been calling for, and the member for Timmins—James Bay has been calling for, is mandatory review of the Copyright Act. I will come back to that in a moment, but there is no doubt, when we look at the history of copyright and the history of new technology, that type of mandated review is absolutely essential.

We have new exceptions to the fair dealing provisions of the Copyright Act, and those are positive, creating an exception for content creators that would enable the circumvention of DRNs for the express purpose of Roos Engineering, introducing a number of exceptions, all of which artists have called for, but the problem that we are seeing is the negative elements of the bill are overshadowing those positive elements, and I will come back to that in a moment.

Here we have the introduction of long overdue copyright legislation, something the government has been sitting on for four years, and now we are seeing that the inept mishandling of this copyright legislation is bringing as much bad as it is good.

There is a particular challenge for Parliament. In this corner of the House the member for Timmins—James Bay has expressed our opinion that this is long overdue. There are important elements that have to be brought forward, but at the same time, the digital torches and pitchfork aspects of the bill have to be dealt with in committee. Though we would be moving to push this forward to committee, the committee has much, much work to do to fix the bad aspects of the bill.

I do want to mention before I get into the negative aspects of the bill. For those of the public who heard the member for Timmins—James Bay talk about the history of copyright, about how new technologies have often been feared by those with vested interests in existing technologies, whether we are talking about player pianos of well over a century ago, or the advent of recording, records, the new radio industry and all the law right through to today and alternative access for music and video through computer means.

What we have seen through each of those innovations is the establishment of new technologies' vested interests wanting to protect their own interests. Because we have the first digital affairs critic in Canadian parliamentary history and because of the hard work of that digital affairs critic, the NDP is pushing forward with what we feel is essential, and that is a balanced approach.

This bill does not have it. That is the fundamental problem. The bill ignores the three key components that would ensure having that balanced approach, ensuring that copyright is maintained and that, particularly, artists who live from the production of their intellectual property are able to receive the benefits of that but that the public also has access to the material. That is the balance that is not yet achieved in the bill, despite much of the effort of the member for Timmins—James Bay to inform the government and really lead the government in right direction.

What are the key problems?

I mentioned earlier some of the advantages in the bill. Practically, they are overwritten by the provisions around digital lock, which I will come back to in a moment.

Second, what we have been saying all along is that there have to be revenue streams for artists. That is why we proposed a very adult solution, which is extending the levy on materials for music-playing devices. That was an adult approach. I will be citing a bit later on some of the reactions from those who are understanding of what Canada needs to have in its copyright legislation, but very clearly, that was adult approach, to say that we need to extend the levy for new devices to ensure that artists receive the remuneration that they need to feed their families.

Instead of doing that, what the current government has done, in a very childish way, is challenge the adult proposals from the NDP and, at the same time, anchored in this legislation a remedy that only large corporations could use: the so-called court remedy. If we go to court, we have to pay a lawyer. Struggling artists cannot do that. That is why there has been so much criticism of this particular bill.

Third, as a principle that we have put forward in this bill and that the member for Timmins—James Bay has put forward as a principle in all copyright legislation, the whole issue around collective licensing, fair access for educational materials. Demonstrably, that is clearly not in the bill.

I will actually start with that element because that is perhaps the most egregious aspect of this bill. This is one of these digital torches and digital pitchforks provisions of the bill. I am just going to read an excerpt from Bill C-32. This is what it says around students and educational institutes. This is the famous clause 27 that my colleague, the member for Burnaby—Douglas, cited earlier, new provisions of the Copyright Act that would add new section 30.01. It says it is not an infringement of copyright for a student to receive a lesson:

However, the student shall destroy the reproduction within 30 days after the day on which the students who are enrolled in the course...have received their final course evaluations.

That is the famous 30-retroactive book-burning clause of this copyright. It is absolutely absurd that those in the gallery, students across the country, would have to destroy the materials that they have based their education on 30 days after they received their final course evaluation. It seems absurd. When I first heard about this, I said that the member for Timmins—James Bay could not be right. But he was right again because those provisions are very clearly in the bill.

It goes on, and it gets worse, unfortunately:

The educational institution and any person acting under its authority...shall--
That is a legal mandate, an obligation:
--(a) destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course...have received their final course evaluations;

The university, the college, the educational institution has to destroy the material. The student has to destroy the material. The penalties kick in if they do not destroy the material. This is retroactive book burning. This takes us back to the Middle Ages. It is digital torches and pitchforks. It is absolutely absurd. It is laughable that the government would even bring forward provisions like that, but that is what it has done in this bill. That is why we are saying that we will not stand for it. We are going to ensure those provisions are taken out of at committee because it would create two classes of students in this country.

It creates a class of students, largely urban, who can access educational institutions very easily. In the world's largest democracy, which at length and breadth is eight million square kilometres, we cannot have students in northern communities, in rural communities, in aboriginal communities, destroying the material they are using online to try to get to the next level of their education.

This is yet another attack by the government on rural and northern Canadians. There seems to be a lot of it. Simply, the government does not seem to like rural Canada. It likes to use rural Canadians but does not seem to like rural Canada very much if it put these provisions in the bill.

It goes on.

A library, archive or museum or a person acting under the authority of one must take measures to prevent the person who has requested it from using the digital copy for more than five business days from the day on which the person first uses it.

Libraries, archives and museums, particularly those in rural areas but also those right across this country, have to prevent people from using a digital copy for more than five business days otherwise they will be in contravention of the act. That is absolutely absurd. What was the government thinking when it put provisions such as the 30 day retroactive book burning and the five day retroactive library burning in the act? These are absurd provisions. It is unfortunate that these provisions overshadow some of the good provisions that the NDP was able to push the government to observe.

As I mentioned earlier, there are some positive provisions in the bill. However, here is the rub, and here is again a symbol of the government's ineptness on digital issues, and that is the digital lock.

Despite all of the principles that are put into play, the positive aspects of the bill that are put into play, the exemptions, we hit the digital pitchfork that is in the bill and that is clause 41.1(a). This is not a long a clause at all. It says very simply “No person shall circumvent a technological protection measure”. That is TPMs, or digital locks. That is it. Case closed. “No person shall circumvent a technological protection measure”, which means that despite all of the protections and expansions and exceptions that may be in the act, it is overridden by clause 41.1(1) which simply put says a person cannot circumvent.

What does that mean? We are talking about the government imposing penalties of $5,000. It could be less. In clause 41.19 and 41.2 we see what the courts are directed to do. This is a court issue. We are talking about protections and exceptions. If a company decides to put a digital lock on and a person even attempts to exercise the exceptions that are in the act, that individual is out of luck.

Clause 41.19 states that:
A court may reduce or remit the amount of damages it awards in the circumstances described in subsection 41.1(1) if the defendant satisfies the court that the defendant was not aware, and had no reasonable grounds to believe, that the defendant’s acts constituted a contravention of that subsection.

In other words, there may be a reduction if the defendant defends himself or herself. We might be talking about young kids or teenagers. We might be talking about students. We might be talking about librarians. Who knows. In that case, the person has to defend himself or herself in court.

We have talked about the five day retroactive book burning and the 30 day retroactive student book burning. Clause 41.2 states that “If a court finds the defendant, that is a library, archive, museum or an educational institution has contravened these sections and the defendant satisfies the court that he was not aware that his actions constituted a contravention of that subsection the plaintiff is not entitled to any remedy other than an injunction. So they are getting an injunction.

These are not small exceptions. This imposes a digital lock above and beyond anything else. Therefore the good components of the act that we mentioned earlier are then subjected to digital lock, the TPM that the government has included in its legislation in the now infamous section 41.1(a).

It just simply cannot contravene or circumvent a digital lock. That is absurd.

What are people saying about this? Here is what some of the folks have said about this bill. We have the Business Coalition for Balanced Copyright said: Some parts of the legislation unfairly restrict consumer freedom and need to be revised before being passed by Parliament such as the inability to circumvent digital locks for private use.

The Retail Council of Canada said: Parts of the legislation unfairly restrict consumer freedom and choice and need to be revised before being passed by Parliament.

The Association of Universities and Colleges of Canada is concerned about the overly strict prohibition against circumvention of technical measures.

The Canadian Booksellers Association would like to see the government allow the public, particularly students and educators to circumvent digital locks on materials sought for educational and strictly non-commercial purposes.

The Canadian Library Association states: The Canadian Library Association is disappointed that long-standing rights and the heart of copyright's balance--

I talked about that earlier. That is what our critic on digital affairs brings forward. That is what the NDP brings forward,

--as well as the new rights are all tempered by the overreach of digital locks.

Today in the newspaper we have Allen Tenost, National Director of the Canadian Conference of the Arts said:
It bypasses the issue of extending copyright collectives in favour of lawsuits.

What we are seeing from a wide variety of sources right across the country concerns about how this legislation has been put forward. Earlier the member for Timmins—James Bay talked about the positive comments about the levy that we are proposing for artists and the National Post and the Edmonton Journal were two of those newspapers cited.

What we have is very clearly the public and organizations all saying that the NDP is right to criticize aspects of the bill. That is what we have done. The member for Timmins--James Bay has pushed the government. We are going to make sure that the ineptitude of the government does not hurt the bill and that we can get the digital torches and digital pitchforks out of Bill C-32 before it comes back to Parliament for consideration