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Fernand Robichaud

The Hon. Fernand Robichaud, P.C. Appointed to the Senate by the Rt. Honourable Jean Chrétien, Senator Fernand Robichaud represents the province of New Brunswick and the Senatorial Division of Saint-Louis-de-Kent. He has served in the Senate of Canada since September 23, 1997.

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Third reading of Bill C-11, An Act to amend the Copyright Act

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Statement made on 29 June 2012 by Senator Maria Chaput

Hon. Maria Chaput:

Honourable senators, I too would like to participate in the debate on Bill C-11, An Act to amend the Copyright Act.

I would like to participate for several reasons. The first is that I was personally contacted by groups and organizations representing the arts and culture industry. I received letters and emails. Also, the arts and culture industry is very dear to my heart and I have a great deal of respect for its creators.

Today I would like to share some concerns about Bill C-11 that come from the arts and culture sector as well as other groups and individuals involved. The Canadian Conference of the Arts presented a list of 20 amendments to the government and the committee studying Bill C-11, on behalf of 68 cultural organizations across the country. The purpose of these amendments was to minimize the negative impact that the bill could have on Canadian artists, writers, publishers and other creators.

Although all 20 of these amendments are fully supported by the 68 cultural organizations across the country, the CCA identified three amendments that were top priorities for the thousands of people represented by the CCA. The first amendment, proposed to clause 32.3 of the bill, has to do with interpretation. It states:

In interpreting limitations or exceptions to copyright in Part III of the Act, a court shall restrict them to certain special cases that do not conflict with the normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the author, performer or maker.

This amendment is self-explanatory and does not require any justification.

The second amendment proposed by the CCA has to do with statutory damages in clause 46 of Bill C-11. The justification for this amendment is the following:

Statutory damages are part of a well-functioning copyright regime. Because it is often difficult for copyright owners to calculate damage caused by infringement, pre- established damages known as statutory damages ensure they are compensated for proven infringements: they work to deter would-be infringers. The statutory damages regime, as it stands, is a necessary element of the Government's goal to fight piracy. The proposed reduction of statutory damages available in respect of all infringements for non- commercial purposes could have the unintended effect of rendering the regime useless.

The legal costs for taking action against "non-commercial" infringers would outstrip the newly proposed damage range of between $100 and $5,000 for all infringements of all of the rightsholder's works or subject-matter.

Copyright owners do not obtain disproportionate damage awards from individuals. The courts already have the discretion to reduce statutory damages awards when individuals infringe for commercial purposes. They should continue to have that discretion. The new limitations on statutory damages for infringement — including their restriction to commercial infringements — essentially knock the teeth out of the existing Copyright Act. With the cost of litigation, the limitations remove any hope of meaningful remedies for infringement. Imposing arbitrary caps risks turning it into little more than a licence fee for infringement.

While it remains important that statutory damage awards be proportionate, it is also important that the regime remains a strong deterrent for infringers, including those that enable acts of copyright infringement on the Internet. Consequently, there is no need to make a distinction between commercial and non-commercial infringement. Instead, courts should continue to have discretion to reduce statutory damage awards in circumstances where they may be grossly disproportionate to the infringement.

Thus, the proposed amendment reflects this justification.

The third amendment proposed by the CCA has to do with the review of the act — an amendment proposed in clause 58 and clause 92.1 — and here is that organization's justification for the amendment, and I quote:

Considering the speed of technological changes that affect copyright, and the impact that the amendments proposed in Bill C-11 are expected to have, a shorter timeframe for the review of the legislation would be preferable. We expect that within three years, copyright holders will be able to clearly demonstrate how these changes have affected them, thereby justifying new amendments to the legislation at that time.

I also carefully read the proceedings of the Standing Senate Committee on Banking, Trade and Commerce pertaining to the study of Bill C-11.

One of the major concerns of witnesses who appeared before the Standing Senate Committee on Banking, Trade and Commerce during its study of this bill was the use by schools of material produced by authors. I am referring to witnesses who deal with authors. Many people are worried because they do not see in the new legislation the obligation to pay amounts of money that are usually set aside for the use of paper or electronic versions of a book or educational material. They asked many questions and there are very few answers.

Will authors be compensated every time 2,000 or 3,000 students receive a copy of a work? In the past, a formula was negotiated to the satisfaction of all stakeholders. How will our authors be compensated in the future? Will they receive compensation for just a chapter or a part of their work?

Does this bill not change the relationship that previously existed between education systems and authors and publishers?

Does this bill not create confusion about the definition of "fair education"? Does this mean private education, public education, professional training? It seems that this can mean any process involving education, whether public or private. It encompasses more than just schools, but no distinction seems to be made.

Therefore, it seems that authors of material will receive no compensation. And creators will have to sue the organization that uses the material for educational purposes in order for the court to decide whether the six factors established by the Supreme Court have been applied to the use. What happened to common sense? What happened to logic?

As Honourable Senator Céline Hervieux-Payette said to one of the witnesses at the June 26, 2012, meeting of the Standing Senate Committee on Banking, Trade and Commerce:

. . . creators talked about a fund that was eventually agreed to of slightly more than $20 million. That amount was distributed to creators for the reasonable application of copyright and allowed photocopies or digital copies. Universities will no longer have to pay that $20 million, so tell me, how will they now compensate authors whose work they copy?

So many questions, honourable senators, so much ambiguity and so few answers. This bill is good and deserved to make it this far but it also deserves to be improved.

I would like to conclude by quoting Bill Harnum, publisher and 2012-13 president of the Association of Canadian Publishers.

We appreciate that our government values the high- quality books we provide and is seeking to make them more accessible. We also know that this government recognizes the importance of sustaining the system that provides them and does not intend to undermine it.

Our concern is that the absence of clarity around the definition of education as a purpose under fair dealing will have a number of unintended consequences. The most immediate of these will be uncertainty in the marketplace, as users claim a very broad interpretation of education.

I would also like to read some excerpts from a letter I received from Michael McCarty, president of ole, Canada's largest music publisher.

The laws we pass must allow and encourage Canada's intellectual property industry to flourish in the digital age. As currently written, Bill C-11 misses the mark.

As Canada's largest music rights owner and employer, we have invested over $115 million in copyrights and employ over 40 staff. Bill C-11 will not only have a negative impact on musicians and songwriters, but also on our business and the people we employ.

We agree that our Copyright Act needs to be modernized. Unfortunately, Bill C-11 will ensure that creators are largely shut out of the digital business while the tech, telcom and broadcast businesses continue to profit from music piracy. The Bill will also "pick the pockets" of artists and songwriters to the tune of $30 million per year through the proposed elimination of existing rights. This is a large part of the income of musical creators for generations to come.

Honourable senators, as Senator Moore stated:

We understand the issue is a complex and controversial one. But we believe there are problems with this legislation which will harm both creators and consumers. We feel that we can fix the problem with amendments.

Honourable senators, artists, musicians, authors and others working in the cultural sector are worried, with reason, I believe. They cannot afford to lose revenues.

Honourable senators, the concerns I have raised are real.

Please click here to read the full text of this debate

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